Warren E. Burger: We'll hear arguments next in 73-1723, Hill against Stone. Mr. Gladden -- Mr. Kendall, I think you may proceed whenever you're ready after the confusion disappears here.
David M. Kendall, Jr.: Thank you.
Warren E. Burger: Very well.
David M. Kendall, Jr.: Mr. Chief Justice and may it please the Court. This is a suit which is brought by the appellees as a class action to challenge the provisions of the constitution of Texas, the statutes of the state of Texas and ordinances of the City of Fort Worth which require essentially that to vote in an election to authorize the issuance of general obligation bonds, the voter must rendered either personal or real property or both for taxation. This is of course is the legal obligation of all Texas citizens. The three-judge District Courts sitting in the Northern District of Texas found that various sections of our constitution, of our statutes and of the ordinances or chart of the City of Fort Worth were unconstitutional. It said they are hereby declared unconstitutional in so far as they condition the right to vote in bond elections on citizens rendering property for taxation. Injunctive relief was granted and the appellant's were ordered to give effect to certain votes in an election, the election which was in question here. I would like to state our argument very briefly if I may and then elaborate on it as time permits. I think the first point we would make is that the attack on our constitution is based on the Fourteenth Amendment Equal Protection Clause. A condition to the invoking of that clause is that there be some classification. It is our position and I think we can show that there is no classification involved here that all residence of the State of Texas are qualified to vote in these elections. The second point I would make is that if there is a classification, nevertheless, we're not talking here about whether or not the citizens of town -- county of Fort Worth may vote on the question for instance of whether or not they can build a library. The vote in question was on whether or not $6,860,000.00 should be financed to the cost of the library, should be financed by bonds payable from taxes, on rendered real and personal property. It is the policy of the State of Texas that only those who obey the law, which does require that everyone render his property and who do render their property and pay taxes on it, although the payment of taxes is not a prerequisite, should be entitled to vote. The statutes declare that all property, real, personal, mixed, except that which is subject to -- I'm sorry -- except that which is exempt is subject to taxation and shall be rendered and listed between January 1st and April 30th of each year. They run business --
Potter Stewart: Being a --
David M. Kendall, Jr.: Yes, sir.
Potter Stewart: Do you have to render the property that turns out -- that is exempt?
David M. Kendall, Jr.: I believe you do because for instance as to personal property, the exemption is a dollar amount. I don't know how you would take the exemption unless you rendered it.
Potter Stewart: No. But what happens in practice. I gathered from reading these briefs that in practice this law isn't very faithfully observe.
David M. Kendall, Jr.: To be very honest, I don't know. We do have in the record that in 1971 I believe there were some $4 billion in personal property rendered in the State of Texas. It produced taxes of 500 million or so. These figures are at page 68 and 69 of the appendix, these figures are part of the stipulation. So, apparently, someone is rendering personal property.
Potter Stewart: Now isn't that -- would they render -- in fact, the people render just their securities they own, they don't render tables and chairs and do they and television sets and washing machines.
David M. Kendall, Jr.: I just -- again, don't know -- I think it varies from place to place. There's some indications in some areas that is automobiles are taxed and others they are not. I know that everywhere I've lived in Texas, I've always have to pay a tax on my automobile.
Potter Stewart: On an automobile?
David M. Kendall, Jr.: I know that in my office in Dallas when I was in private practice, the tax assessor used to come through the office and list every table and chair we own.
Potter Stewart: Well now -- but you didn't render them, he listed them?
David M. Kendall, Jr.: Well, that's the alternative. If you don't render he renders for you, so its -- they're rendered.
Potter Stewart: And the -- how about this voter qualification if it's not a voluntary action on the part of the individual taxpayer would be voter if it's rendered for him by a tax collector, does that make him eligible?
David M. Kendall, Jr.: I would think that would be considered a rendition.
Potter Stewart: It's not what you think. Your answer is one of that of the law.
David M. Kendall, Jr.: I'm sorry, I don't know. The courts have not spoken to that but that is considered -- that your property has been rendered.
Potter Stewart: If it's rendered for you?
David M. Kendall, Jr.: Yes, sir.
Potter Stewart: As well in -- rendered involuntarily?
David M. Kendall, Jr.: Yes, sir.
Potter Stewart: And this -- and in practice, you know what the facts are, what the actual facts of life are so --
David M. Kendall, Jr.: The reason I don't know is that they vary from tax assessor and collector to tax assessor and collector. The law is very specific that everything must be --
Potter Stewart: Why not?
David M. Kendall, Jr.: Some render, some go out and very precise I believe in listing a person's property, others do not.
Potter Stewart: Is this the -- the county, is that the end of it?
David M. Kendall, Jr.: Again, it can be the county; in this case it's a city. It can be the county, it can be a school district, it can be any other kind of a special district.
Speaker: Well, does this add up to the -- you have tax rolls and as the name Brennan's on it with some property listed next to it, he's eligible to vote because whoever put it there, his property has been rendered?
David M. Kendall, Jr.: That's correct. Whether or not you pay taxes or --
Speaker: Whether it's all my property or a thousand part of it doesn't matter?
David M. Kendall, Jr.: It doesn't matter, the value doesn't matter.
Speaker: And whether or not you ever actually paid taxes, isn't it?
David M. Kendall, Jr.: That is correct. That's the holding of our Supreme Court in the Montgomery case.
Warren E. Burger: Well, I suppose whether the return, the rendering of a report is true or false, that that's also true. He might be -- the taxpayer might be liable under some other statute for rendering a false report.
David M. Kendall, Jr.: That's correct.
Warren E. Burger: The rendering gets him on the rolls.
David M. Kendall, Jr.: He is on the rolls.
Speaker: Does he have to be otherwise registered?
David M. Kendall, Jr.: He'd also have to be a registered voter, yes sir.
Speaker: But I gather when the assessor goes to through your office, he doesn't look in your safe and find all the securities there and he just lists your tables and chairs, you're an eligible voter?
David M. Kendall, Jr.: That is correct.
Speaker: And I suppose your next point is that anybody could render property if he wanted to?
David M. Kendall, Jr.: That is correct.
Speaker: If he wants to vote, he can vote, all he has to do is render some property and everybody has got some property to render.
David M. Kendall, Jr.: Exactly. If I may quote from the Supreme Court on this very -- of Texas on this very point, it --
Speaker: Well, what if one files are returned showing no property, is he then eligible to vote?
David M. Kendall, Jr.: I think he would have to render property for taxation. Everybody knows -- he at least has a pair of pants.
David M. Kendall, Jr.: That's right -- excuse me, I'm sorry. Our position is that everybody and the Supreme Court said this of Texas said that everybody has property. Everybody has something to render and in their language --
Byron R. White: Sometimes during the year, I believe.
Speaker: You had a case in Texas, didn't you where five voters rendered $100.00 each?
David M. Kendall, Jr.: Yes, sir.
Speaker: And the court held that that --
David M. Kendall, Jr.: That was Handy against Holman and the Court said, that's right, they want to render $100.00 each so they can vote, they can do it and we can't challenge that.
Speaker: Do the counties determine the rate of tax or is this determined --
David M. Kendall, Jr.: We have multiple taxing authorities. A county will determine the right taxation for county taxes or city taxes, school district taxes, junior college taxes, hospital district taxes and so on and each one will determine its own rate within certain statutory or constitutional limits.
Speaker: Are this very widely across the state?
David M. Kendall, Jr.: Yes, sir. The Supreme Court in the Montgomery case said and I'm quoting, “It is the contention of the Attorney General and we agree that voter qualifications of ownership under the Texas constitutional and statutory provision stated above as interpreted by our decisions are so universal as to constitute no impediment to any elect or who really desires to vote in a bond election. A voter is qualified if he renders any kind of property of any value and he need not have actually paid the tax.
Warren E. Burger: If we read in Handy, the Handy case?
David M. Kendall, Jr.: No, I'm sorry case, the Montgomery case in 464 S.W. 2d at page 640.
Speaker: Incidentally, when one goes to the poll I gather of course there's a registration list, but how does he prove that he --
David M. Kendall, Jr.: He files -- he signs an affidavit that he has rendered at least one piece of property for taxation and --
Speaker: Just signs an affidavit?
David M. Kendall, Jr.: Describes that.
Speaker: I see.
David M. Kendall, Jr.: Yes sir. The statutes require that all property be rendered for state county taxes for tax of political subdivision and so on and that those who have duly rendered taxation are qualified to vote. These provisions are attacked by the appellees as being unconstitutional as invidiously discriminating against a class, namely the class of all those who fail to render their property for taxation even though our statutes require that they do render their property. It's attacked by another group of appellees who rendered their property but who now assert that because -- who assert that rendering taxpayers are given a veto in effect. In Reynolds against Sims, this Court made it clear that classifications of those entitled vote based on race, sex, economic status or place of residence were invidiously discriminatory and would fall. There is no justification constitutionally for those classifications but the classification if there is one under our Texas constitution and statutes is a classification of those who obey the law and render their personal property for taxation, whether they pay or not. Surely, that classification having nothing to do with race or sex or economic status or place of residence --
Speaker: I know, is that true which you just said. As I understand it, it's the Texas law that if one renders an incomplete return or a false return, he qualifies to vote in this kind of an election?
David M. Kendall, Jr.: Yes sir, if he renders at all.
Speaker: And he doesn't have to file a complete return as you just indicated?
David M. Kendall, Jr.: Not for these purposes. Again, I'm sure varies from district to district, the law requires a complete return and he fails to file one and if it's the policy of the district to enforce the law in that respect, he would be --
Speaker: Well, he may be prosecuted under some other statute?
David M. Kendall, Jr.: Some other statute.
Speaker: But do you know as a -- does the record show how many people in fact file a de minimis return?
David M. Kendall, Jr.: No sir. As a matter of fact the record doesn't show that there is a single person who did not file a return. The record is absolutely silent on that. We don't know that there is a person who was eligible to vote in this election who did not file a return. We know that there are people who voted as not having filed returns. But we don't know that there's a single person who did not nor do we know where there's a single person who cannot file a return.
Speaker: Well, I gather Mr. Kendall anyway, speaking now of the election process, one goes into the voting booth and all he does is sign an affidavit that I have returned a $100.00 cash, furniture that sort of thing and the Election Board lets him vote, they don't look behind it.
David M. Kendall, Jr.: No, they do not.
Speaker: I suppose unless he's challenged.
David M. Kendall, Jr.: If he were challenged, I assume they would for it but I know no instance was on here as we know it.
Warren E. Burger: And if it were not true then he might be subject to some penalty of perjury for making false statement to get into the pooling place.
David M. Kendall, Jr.: Correct.
Speaker: Is money renderable?
David M. Kendall, Jr.: Yes sir. Money in the bank is subject to rendition.
Speaker: As cash in your pocket?
David M. Kendall, Jr.: I guess cash in your pocket and shoes on your feet, watch on your arm.
Speaker: What kind of exemptions do you have for this kind of thing?
David M. Kendall, Jr.: $250.00 for household, goods and furniture. So your watch is not exempted --
Speaker: What about clothing? No exemption at all?
David M. Kendall, Jr.: No exemption for clothing, household goods and furnishings for $250.00. The truth that matter, well, in Reynolds against Sims, this Court said, so long as the divergence is from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal population principle are constitutionally permissible. The truth of matter is that our statutes deny the right to vote on a bond election to no one, rich, poor, black, brown, white or for any other reason. Everyone own some property subject to rendition. And as I pointed out, there is nothing in this record to show that there is anyone who cannot meet the qualification to vote, who cannot render. There are many many people who do not render their property for one reason or another personal to them but there is no evidence in this record that there is anyone in the City of Fort Worth who could not have rendered property and who could not have qualified to vote.
Speaker: Well, you indicated a little while ago that someone without any property at all could not render.
David M. Kendall, Jr.: If there is such a person in Fort Worth that he could not render, if he absolutely would start naked --
Speaker: Well, could suppose he went in and just said all I own is a suit of clothes?
David M. Kendall, Jr.: Render it.
Speaker: Let's render it. Now, and I gather if I understand what you said about your Supreme Court opinion, it's immaterial whether he pays a tax or not.
David M. Kendall, Jr.: That's correct, they said that --
Speaker: He still may vote?
David M. Kendall, Jr.: Yes, sir.
Speaker: Therefore, it's not like a poll tax case where you can't vote unless you pay the poll tax?
David M. Kendall, Jr.: That is correct.
Speaker: Even though that's only a dollar or two. The tax and the suit of clothes might be 50 cents but even he don't pay he can vote, is that right?
David M. Kendall, Jr.: Correct Your Honor.
Speaker: Is there one day in a year you can render?
David M. Kendall, Jr.: Oh! No, you can -- by statute you can render from January 1st to April 30th.
Speaker: But as a --
David M. Kendall, Jr.: By statute and I'm sure -- and I think you can even render after that.
Speaker: You mean on any date within that period of time or is it?
David M. Kendall, Jr.: The current year's taxes are rendered between January 1st and April 30th.
Speaker: Before what day? What is your assessment date?
David M. Kendall, Jr.: January 1st.
Speaker: This I think is what Justice White is asking.
Byron R. White: That was.
David M. Kendall, Jr.: Well, its property owned as of January 1st as the determinative --
Speaker: On April 1st you could at least remember you had one meal that day, you could render it.
David M. Kendall, Jr.: Yes, sir.
Warren E. Burger: Could you render saying I have household goods and furnishings of the value of $250.00 and claim my exemption, is that a rendering?
David M. Kendall, Jr.: That is a rendering, yes sir. You would not pay any taxes on it.
Warren E. Burger: But you could vote?
David M. Kendall, Jr.: I believe so, yes sir. You have rendered your personal property.
Thurgood Marshall: What about the home state property?
David M. Kendall, Jr.: That also is rendered. You have to render it to claim a home state. You only claim the home state when you render it.
Thurgood Marshall: But all you did and you don't pay tax at all?
David M. Kendall, Jr.: That's right.
Speaker: Mr. Kendall, I suppose there are other laws which impose an obligation on you independently of the right to vote, to render taxable property, are they?
David M. Kendall, Jr.: Oh! Yes, sir. There's the whole section of the -- in our statute having to do with the rendition of personal properties starting with Article 7150 I believe it is.
Speaker: So if you have a $500.00 bank account and do not render it then you violated Texas Law?
David M. Kendall, Jr.: Yes, sir. The statutes are very specific. Article 7162 has some list some 42 different things which must be rendered. And then it concludes with Section 43, the valuable other property not enumerated above, so I don't know of anything that doesn't catch and its --
Speaker: Is there --
David M. Kendall, Jr.: The number of goats and value thereof and so on, I mean it's that specific.
Speaker: Is there a form provided for taxpayers to fill out for rendering property?
David M. Kendall, Jr.: I'm sorry but I don't know.
Speaker: You've never filled one out yourself?
David M. Kendall, Jr.: I have -- no, I have not. I have not lived -- I've had personal property rendered by the taxing authority for me but I've never gone down and filled out a form where I rendered.
Speaker: But do you know then whether the rendition or the rendering by the authority is a true and correct rendition if you haven't done it yourself?
David M. Kendall, Jr.: You mean whether it's technical -- correct as to value or as to what property.
Speaker: Complete as to your holding.
David M. Kendall, Jr.: I'm sure it is not. I'm sure it is not complete as to my holding.
Speaker: Well then, how was the Texas system rational in any way?
David M. Kendall, Jr.: It is uniform that whatever the practice is that is uniform and equal within a particular taxing authority. The Supreme Court has said that anybody who wants to vote in one of these bond elections, if he wishes may go down and render any amount of property for taxation, he does not need to pay a tax on it but he has to have some property rendered.
Warren E. Burger: I suppose the statute need not to be rational to be constitutional if it doesn't hurt anybody, is it not?
David M. Kendall, Jr.: I think that -- although I think there is a certain rationality in this although it does -- not as it applies to everyone but the theory behind this I'm sure is that if you're going to build a $6,000,000.00 -- $6,860.000.00 library and pay for it by taxes levied against rendered property and that's the only way its going to be paid for, its not subject to payment out of other taxes and if you don't --
Speaker: Mr. Kendall, is there anything in this record which indicates the differences statute has made in voting on this bond issue?
David M. Kendall, Jr.: The only statistics in this record as to vote is on these two issues which were involved in the election in question.
Speaker: And what's the -- by a reason of this requirement, how many people were not -- votes were not counted?
David M. Kendall, Jr.: All votes are counted, they're given different effects.
Speaker: I see.
David M. Kendall, Jr.: Those who have rendered are counted and the bond issue carries only if they -- a majority of them and the majority of all --
Speaker: Yes, I recall.
David M. Kendall, Jr.: Now this is -- there is no statute that provides this method of voting, this is something which the Attorney General's predecessor devised as a means to assure that we can continue to have bond elections --
Speaker: So that you get again majorities oppose?
David M. Kendall, Jr.: Right.
Speaker: When you did then you were safe?
David M. Kendall, Jr.: 1That's right, and in this instance the --
Speaker: You did not get over the --
David M. Kendall, Jr.: And the library issue failed. It got a majority of those who did not render but it did not get a majority of those who did render. I mean issues submitted to those who rendered was or to all of them --
Speaker: As between those who rendered and those who didn't render, what were the proportions?
David M. Kendall, Jr.: The exact vote on the library issue of those who rendered, 10,000 or 11,000 voted for and 12,000 voted against.
Speaker: So that's a vote who rendered?
David M. Kendall, Jr.: Of those who rendered is 11 to 12.
Speaker: So that's talking about 21,000?
David M. Kendall, Jr.: Right.
Speaker: And the other --
David M. Kendall, Jr.: On the nonrenderers, it was 3,700 for and 1,100 against.
Speaker: That's about 6,000, no, 4,500 is it?
David M. Kendall, Jr.: 4,800 and it's about 3 to 1.
Speaker: 4,800 against 21,000 who rendered and 5,000 who didn't?
David M. Kendall, Jr.: Right.
Thurgood Marshall: Well now (Voice Overlap) those that did render violated the law, didn't it?
David M. Kendall, Jr.: They violated the law --
Thurgood Marshall: What do you to them?
David M. Kendall, Jr.: I'm sorry, and what was violated?
Thurgood Marshall: By not rendering their property.
David M. Kendall, Jr.: By not rendering? That again is up to the local taxing authorities as to what they will do if anything and --
Speaker: What's the statute say as to sanctions for not rendering?
David M. Kendall, Jr.: I have not found any.
Byron R. White: You hope there are?
David M. Kendall, Jr.: Probably.
William H. Rehnquist: Why do some -- I mean, I realize its necessary you speculative somebody -- but why do a lot of people render and some people not render, is it just a question whether you want to pay taxes or not?
David M. Kendall, Jr.: Well, of course one reason for rendering would be if you'd like to vote in this type of election, that's one reason. Another is that I think you probably understand more of an obligation to render absolutely everything if you do it yourself because you have to render under oath and state that that is all the property you have. Where as if you leave it up to the --
Speaker: If the assessor got it wrong?
David M. Kendall, Jr.: Well, the assessor for instance goes to the automobile license rolls and he -- and every county I've lived in and I get a tax bill for my automobile, a property tax bill on my cars where he has rendered them for me but he doesn't -- except in my business, he doesn't come to my home and --
Warren E. Burger: As I reflect for a moment on this in the two states I've lived in as a legal resident, Minnesota and now Virginia, that's precisely what a great number of people do, they just don't bother to make a report, they permitted the assessor, and if you levy for a household goods, a fixed percentage of the value of their home as the alternative and then the automobile is taken off of the automobile list. So I guess --
David M. Kendall, Jr.: Because I think most people I know don't render their homes, their surely taxed. But the only time that you don't have the right is that if you feel that they've been unjustly valued and you get on the board of equalization and complain about it, but otherwise you just -- you get a notice that they've rendered it a certain figure and you accept it. The cases upon which the appellees rely, I think they're easily distinguishable, first is Kramer, the Kramer case, in that case involved an election of a board, a school board and the decision was essentially to enforce the one man, one vote rule in the absence of some compelling state interest to deny the franchise to all bona fide residents. Then Chief Justice Warren declined to express an opinion as to whether the state in some circumstances lighten them if they exercise the franchise to those primarily interested or primarily affected because there, he found everybody was equally interested in the practice. In a dissent written by Justice Stewart, it was said that they were unable to see any distinction between permissible limitations and those imposed in the Kramer case and Mr. Justice Stewart went on to say and I'm quoting, “So long as the classification is rationally related to a permissible legislative end, therefore as our residents, literacy and age requirements oppose with respect to voting, there is no general denial of equal protection. The Cipriano case --
Warren E. Burger: But if you're dealing with our cases, counsel, maybe it would be a good time to let -- to hear from your friend and see whether you have any comments after he gets through if you've covered your major points.
David M. Kendall, Jr.: I think I have if the Court please. I would like --
Warren E. Burger: Given the hour of the day it might be helpful to --
David M. Kendall, Jr.: I'd like to make one other point and that is that this election is not a vote on whether or not to build the library, it's a vote on whether this is how it be financed. The City Council determines where the library is built. The City Council may build it with funds from the Federal Government, from some foundation or from other sources. The question here is whether these people who rendered property maybe those who are entitled to vote on whether that's the financing to be used for the library.
Warren E. Burger: Mr. Gladden.
Don Gladden: Mr. Chief Justice, may it please the Court. If I may go right in to Mr. Justice Stewart's question relative to the practical application of the Texas law as it applies to the personal property or the taxing structure. What the situation is, our real estate is easily identifiable and assessed by the county tax assessor and the governmental entities that assess and levy taxes. Personal property in Texas and incidentally I cite in our brief, 51 Texas Law Review 885, the property tax in Texas under state and federal law by Professor Yudof, fairly well outlines our facts as those being the same facts in the Stewart case arising in the State of Louisiana, and that is that you have an all encompassing reference to all property within the state being taxable and then as a practical matter, the collection is restrictive to real estate and business property which is easily discernable. Counsel's reference to his law library being taxed in Dallas is one of those business assessments that is made after the time for personal rendition takes place. From a practical standpoint about the only taxes that are levied in Texas are taxes on real estate, taxes on business personalty and in about 400 taxing districts, taxes on automobiles. Most --
Potter Stewart: How about intangible personal property? I'm talking about securities.
Don Gladden: No, they're from a practical standpoint. No intangible property is either voluntarily rendered nor is there any facility available for the tax assessor to go out and locate and identify. He does not go to the banks and assess bank accounts unless it's a business-oriented or a business-committed.
Potter Stewart: State income tax?
Don Gladden: No sir, we do not.
Potter Stewart: And how do you raise all these money that you're --
Don Gladden: By ad valorem taxes on real proper -- real and business person, real property and business personalty is where the money comes from.
Potter Stewart: And that's it?
Don Gladden: We have a sales tax.
Potter Stewart: You have a sales tax but no state income tax?
Don Gladden: We have no state income tax. We have a city sales tax as well as a state sales tax.
Thurgood Marshall: What happens if I go and say, use your words in Texas that I want to render a $100.00 worth of personal property?
Don Gladden: Well, its kind of hard to do, Mr. Kendall can't point it up that it just isn't done, Mr. Justice Marshall.
Speaker: You already know where it go.
Thurgood Marshall: But what -- say when you go to vote?
Don Gladden: You don't render -- you must already previously rendered it and you must --
Thurgood Marshall: And why do you send a letter to the rendering agency and say I hereby render?
Don Gladden: Right, that's -- if you do that and you're willing to sign an affidavit to the effect that you have rendered taxable property. Now, I disagree with Mr. Kendall, Article 3 (a) does not say rendition of nontaxable property qualifies you to vote.
Thurgood Marshall: Well, I thought you said all intangible property was taxable?
Don Gladden: Except for this $250.00 exemption perhaps.
Thurgood Marshall: Yeah.
Don Gladden: But what Section 3 (a) says and this is the Section that we're complaining off. It provides that a person who is already qualified must also be a person who has rendered property -- wait, excuse me -- tax, well, first of all the city's ordinance says that it must be taxpaying voters, the --
Potter Stewart: The ordinance is different from the --
Don Gladden: Yes, yes. The city ordinance -- the city ordinance makes reference taxpayers, persons who are taxpayers. The state statute says provided that a majority of a qualified property taxpaying voters of the district and an election to be held for that purpose who shall vote such tax.
Speaker: But Mr. Gladden, are you suggesting disagreement with the -- with Mr. Kendall by -- when I asked him earlier, suppose one simply went in and signed an affidavit and said I rendered a suit of clothes that's all I owned, and he said that if one did that at the polling place, he'd be permitted to vote?
Don Gladden: No, sir. He say that you did do that, yes.
Speaker: Yes, would you then be able to be permitted to vote?
Don Gladden: Yes and of course if you had committed a fraud and have not rendered that suit of clothes for tax purposes, then --
Speaker: Well, (Inaudible) but you did --
Don Gladden: But if you had, yes.
Speaker: If you have that then you'd be permitted to vote?
Don Gladden: I'm satisfied that's true, yes.
Speaker: So, one doesn't have to pay the tax on the suit of clothes, 50 cents, 25 cents, or whatever it may?
Don Gladden: Presumably.
Speaker: Well, in that sense, as under, read Judge Thornberry's opinion that one of the grounds in which he found this unconstitutional was that its like the whole tax case, our Harper case but you had to pay the poll tax before you could vote but here as I understand it, if I correctly understand you, you don't have to pay the tax from the suit of clothes as long as you rendered the suit of clothes and you may vote, is that right?
Don Gladden: Well, this is correct because as I say, again, the Stewart situation was this Court summarily affirmed applies that from a practical standpoint, there is no rendition of personalty. The tax assessor after April 1st has the authority to and does go to business people and does determine how much of Mr. Kendall's library or his value of his law library, he does not go out to his house and inventory his personalty.
William H. Rehnquist: Where is the 23,000 rendering taxpayers, were they all owners of businesses?
Don Gladden: They were all owners of real estate, Your Honor.
Speaker: Or automobiles?
Don Gladden: In most instances -- in most instances.
Speaker: Or automobiles?
Don Gladden: Not in Fort Worth.
Speaker: Oh! I see.
Don Gladden: City of Fort Worth does not even undertake to assess private personal automobile, business automobiles only.
William H. Rehnquist: Is there any way of telling from this record what the nature of the property rendered was on behalf of the 23,000 who said they had rendered?
Don Gladden: No there is not. There are some references into it as to the amount of dollar revenues that come from personalty versus realty but there is no reference as to where that came from business, interest which -- of course corporate interest, they have no right to vote in this type of situation and of course corporate interest are the family owners and --
William H. Rehnquist: So the record doesn't shed any light on the type of property rendered by these 23,000?
Don Gladden: No, but let me if I may back up and kind of orient -- outline the fact situation as to this election and as to the procedures that had been followed to shed maybe the circumstance where we're confused. First of all, prior to the three-judge court decision in Phoenix. In Texas, only persons who had rendered property and in that instance for all practical purposes only persons whose property had been rendered by the tax assessor that being real estate were privileged to exercise the ballot. Following Cipriano and the three-judge court in Phoenix, the Attorney General's office established this due election process whereby, he in turn said, in order to preserve the validity of bonds pending at this Court's determination of the constitution as it applies to Texas we'll set up a dual election process and that is those people who come into, we will for the first time let in essence none real property owners come in to the ballot box but we'll segregate their ballots and have them cast in one ballots and those who are willing to affirm rendition of taxable property in another box, and then we'll have a record as to what the facts are when and if the federal courts decide that our state law is unconstitutional. This has been the procedure that has been followed in Texas since 1969, since the District Court decision in Phoenix and this Courts decision in Cipriano and Kramer.
William H. Rehnquist: Well, you say the breakdown is between real property taxpayers on the one hand and those who have affirmed the rendition of personal property on the other?
Don Gladden: No. No, the rendition, what happens is if a person comes into the ballot box, entered the polling place, he is afforded since Phoenix and since the District Court decision in Phoenix in 1969, he is afforded an opportunity to sign one of two pieces of paper. One piece of paper said I own and have rendered property subject to taxation in the City of Fort Worth and I therefore am entitled to vote over in this box. Alright rather they then the election --
Speaker: But that order said you didn't say what the property was?
Don Gladden: No.
Speaker: I own and have rendered.
Don Gladden: That's correct.
Potter Stewart: And as a matter of practical fact you're telling us that anybody who is in that box would be their own real estate or --
Don Gladden: Or business.
Potter Stewart: Or a proprietor of a business and own property.
Don Gladden: Which had been assessed by the tax assessor.
Potter Stewart: Right.
Don Gladden: Which the tax assessor initiated the placing of him on the --
Potter Stewart: As a matter of practical fact that would be --
Don Gladden: Yes. That's correct.
Potter Stewart: Those people only would fall into that conduct.
William H. Rehnquist: Who's on the other box?
Don Gladden: Okay, in the other box, they come in and then I say from 1969 forward, up until 1969, they were not even privileged to come on the premises but from 1969 forward, they signed a statement to the effect, I have not rendered any property within the taxing district and they say, okay, you go vote over in that box. So then we have the sanctity of the real property or the -- for practical standpoints the real property owners preserve in that instance and then we also have to tabulate for no purpose actually, I think under Montgomery, the remaining straw poll of those persons who have neither rendered their property nor had the tax assessor to come by their business and render it for them.
William H. Rehnquist: And although you say that as you've said as a matter of practice, it tends to be real property or business personally that's rendered of -- so far as the record has shown on this 23,000 voters here who rendered, the record does not show what type of property they're in.
Don Gladden: This is -- this is quite correct.
Speaker: Could have been somebody who was interested enough to write a letter and say, “I hereby render a $100.00 worth of property because -- and PS this is because I want to vote” and then he goes in and he'd perfectly qualified to vote.
Don Gladden: Very well could have. If he renders it and of course then he is on the tax rolls and the tax assessor sends him a bill the next year for his proportion of share. Assuming that his taxable property --
Thurgood Marshall: Wouldn't he first write a letter and say, what do you mean by rendering? Yes, and of course --
Thurgood Marshall: And he doesn't write (Voice Overlap) --
Don Gladden: And of course this is the question that we've been faced and the reason that we only had 4500 people vote in this election was because it was the first time experience and when you went in, even the election judges couldn't tell you what rendition mean and we found ourselves in a situation where people in the newspaper, two column I think, there's an exhibit where there is a two-column story on the front page of the newspaper explaining why for the first time. People who don't own real estate are privileged to come and express their opinions though they will not be considered by the Attorney General in Texas for the purpose of determining the validity or the issuance of bond and --
Potter Stewart: The Attorney General after you went into these two box system under what he understood to be the compulsion of the Phoenix case and Kramer, that he then didn't certify that the bonds were valid unless there was a majority of both the rendering people and the majority of the total.
Don Gladden: This is correct. Then Montgomery was decided.
Speaker: Yeah.
Don Gladden: And so then we add additional confusion. The Attorney General's position was, was I'm not going to certify and it's his statutory responsibility of certifying the validity of the bond and then not savable otherwise.
Speaker: Right.
Don Gladden: The Attorney General's position was that but then a -- Montgomery which was a mandamus brought by a school district against the Attorney General seeking to require him to certify where there had been a split, where the aggregate carried but it did not carry in the property owner box and the Texas Supreme Court said in essence as I read it that neither the Attorney General nor the Phoenix case applies and that Article 3 of Section 6 of the Texas constitution just says real property owners period. They're not real property, says property owned, persons who have rendered property for taxation. And so, I think that Montgomery backed away from the position of the Attorney General in this makeshift kind of a, we'll do it both ways, we'll look at the aggregate and give the aggregate veto power but not approval power.
Potter Stewart: But the Attorney General nonetheless went on, he continued with his, with his --
Don Gladden: In order to -- yes, in order again --
Speaker: In order to play it safe?
Don Gladden: In contemplation of the Court's ruling in this case I think.
Speaker: In this case.
Don Gladden: If this Court does not uphold the lower court, the dual balloting system will be dispensed with and we'll go back to the initial Section 3 (a) of those persons who owned properties which have been rendered for tax purposes.
Speaker: There's one other little fish hook in this case and that is that the Fort Worth ordinance seems to require something additional.
Don Gladden: It certainly does. It requires that you actually pay taxes.
Potter Stewart: You have to pay tax.
Don Gladden: And I think that Section 3 (a) contemplates the payment of taxes. The purpose --
Speaker: But doesn't say so?
Don Gladden: No, but the purpose and if you read Montgomery and if you'll read the whole line and counsel's brief, the purpose of this taxing, of this provision is to collect taxes not suffrage and of course, under the poll tax case, the lines drawn, the requirements of this Court in limiting suffrage, once that you've -- you afford everybody the opportunity to vote, you say people are qualified to vote in elections and then you say in bond elections, you narrow it to a special group of people then you got -- it has to be tailored to fit the purpose of and I hardly need to suggest that Section 3 of the Constitution certainly has not been tailored to collect very many taxes.
Speaker: I don't quite understand, if your Supreme Court has said, rendition entitles you to vote not withstanding you don't pay the tax. How can your city have an ordinance which requires you to pay the tax as a rendition to vote?
Don Gladden: It's there, its suppose to be in conflict with --
Speaker: Well, I know but that device is --
Don Gladden: It's in conflict with --
Speaker: Can the -- or can the ordinance stand up against that interpretation --
Don Gladden: At this point, we're attacking the ordinance. For the first time it's been attacking --
Speaker: Well, what is the issue in this case?
Don Gladden: An issue in this case is suffrage, whether of not --
Speaker: Is the ordinance -- is the ordinance or the state statute?
Don Gladden: Both the state statute, state constitutional provisions and the ordinance.
Speaker: Are they different?
Don Gladden: And they're all different and --
Potter Stewart: And they are different, they differ from each other.
Don Gladden: I beg your pardon?
Speaker: Since when -- if it were only the ordinance, I don't suppose the three-judge court would have any jurisdiction.
Don Gladden: Well, of course we attacked the attorney general's certification or refusal to certify and that gave its statewide application because we are attacking the state constitutional provisions which was set out in the Phoenix case and referred in the Phoenix case.
Speaker: But the three-judge court must have voted in the same poll in this description at the outset, he talks about the in one perhaps about -- talking about the laws of the state and then at the city charter?
Don Gladden: This is not true, the city charter requires the payment of taxes, the --
Speaker: You talk about they're all the same -- same way?
Don Gladden: Well, they are different and in the city's brief which incidentally, the city filed a brief as an appellee but in support of appellant's contention. There are some briefs by some other taxing districts or some other districts including the El Paso Junior College District which was statutorily created by a majority vote and given the power to assess taxes by a majority but restricted in bond elections to issue bonds for capital improvement to go back and obtain not just to general majority qualified voter but to go the property owned -- those persons who have rendered property for tax purposes to issue those bonds.
Speaker: Mr. Gladden --
Don Gladden: They're in support of our position. Yes, Your Honor?
Speaker: In the election that you've been talking about, was the Fort Worth ordinance applied as I understood what you said earlier, a voter who entered the booth on a polling place was given the opportunity of going in one of two voting booth, in one, he would sign a certificate of some sort saying he had rendered property, was he also required in Fort Worth to say that he not only rendered it but pay taxes?
Don Gladden: I'm not sure what the language I think, the language probably was drawn in the -- in the -- and I hand a copy of that as an exhibit. I think it's probably drawn on the state affidavit concept and that is I own taxable property which has been rendered for tax purposes. I disagreed with Mr. Kendall that nontaxable items like household goods, a rendition of household goods only would not constitute rendition of taxable property if (Voice Overlap) right.
Speaker: So maybe that the -- excuse Mr. Chief Justice, I'm simply going to ask whether if the ordinance was not applied in this case, we have that ordinance or its validity before us?
Don Gladden: I'm not sure that you do have, Your Honor.
Speaker: Another question I want to ask about the certificates of one signs. Is that -- does that signature enjoy the secrecy of the ballot box or is your name signed to it and your name been made available to the taxing authorities?
Don Gladden: It is not a secret. It is an available thing that's on file along with all the other election returns. The list of those persons who voted in this box and that box together with the supporting signature on the thing that comes in is available to the taxing authority.
Speaker: It's a separate piece of paper from the ballot?
Don Gladden: Yes. It's a roll that you come in and as I say they separate you as you come in depending upon which one of these particular declarations that you signed.
Speaker: So you sign your name on a book, perhaps?
Don Gladden: Yes. On a sheet of paper which is numbered in terms of a registration that I vote, I appear here today and I voted. The particular instance though is that there's no evidence of the utility of this by any taxing authority to go out and render or to find out what that person really does have or to collecting the taxes from that person. And so, from our position is in terms of the constitutional application, there are other means by which to collect taxes. There are far better means than that which is not exercised though --
Speaker: I might say that there really is -- rather makes some big difference to me whether or not that ordinance was applied to those who are permitted to vote as having rendered.
Don Gladden: Your Honor, I think I can in just a moment find -- locate the language. Okay, the ordinance was not applied, the language on the certificate was cast on the terms of the state constitutional provision which says I own taxable property in the district and it has been duly rendered for tax purposes.
Speaker: So the ordinance really was --
Don Gladden: Did not impair the participation, that's correct.
Speaker: So when you say you're attacking the ordinance, did you mean by that attacking it before this Court?
Don Gladden: We -- yes, yes. We raise and filed the suit in the lower courts --
Speaker: But if unless it apply? Only do the extent that it's gone so far as the state law?
Don Gladden: Right. The ordinance provided that no bond shall be issued unless authorities shall first be submitted to the qualified voters who pay taxes. And -- but it was treated from a standpoint again from the news media coverage of this and from all other purposes as being equating the same as rendition either involuntary.
Speaker: As if it read to a liable to pay taxes rather than --
Don Gladden: Yes, yes. And --
Warren E. Burger: When was this rather unique provision adopted in Texas?
Don Gladden: The Texas constitution I think was, this was adopted in 1879 and then amended in 1932, I believe. Its my --
Warren E. Burger: Carried over from the days when it was an Independent Republic?
Don Gladden: No, I'm not sure whether or not it was in the provisions prior to Independent Republic. We went out in 1845 and became a state that year and 1879 was the last constitution that we adopted, this was deliberated on as I recall -- as I -- as the historic background was. Was deliberated on by that constitution convention and it was resolved that property owners were the ones that ought to impose long term obligations on the ad valorem tax base and that has carried forward -- was carried forward up until the Phoenix decision was rendered and then it as I say this modified approach has been taken pending or since the District Court in the Phoenix case. We feel like that this Court in the Phoenix case outlined, looked at the Texas constitution and footnoted the 14 states that had no unique problems in levying and collecting taxes and in turn found that Phoenix could get by -- the City of Phoenix could get by any taxing procedures without imposing suffrage or imposing an additional requirement on a person's right to vote. That was not tailored to satisfy an imperative need of the state and I think that's our situation in this case. We have a circumstance where if there is no classification then there is no need to impose an additional requirement on a voter that he have made some kind of a declaration to somebody at sometime prior to the time he enters that booth that has not been acted upon, that has never been used as a basis upon which to levy and collect taxes, to add that additional requirement and knowing Mr. Kendall's --
Speaker: However little inconvenience it involved?
Don Gladden: However little inconvenience.
Speaker: Too much constitutionally in the way of a burden.
Don Gladden: I think the right of suffrage Mr. Justice is one that we need to encourage rather than discourage.
Byron R. White: Well, it's -- the ballot is almost as burdensome as requiring him to register.
Don Gladden: Its well, it -- no, registration you can go door-to-door to assessing your personal property. I think you got to go down to county courthouse and find somebody there who has to go ask somebody where you find the point.
Speaker: Or you have other lawyers?
Don Gladden: No, I think you got to render it under oath according to the statute. You must --
Speaker: But even so, even if it's only writing a letter, do you still suggest that involve and that's too much.
Don Gladden: I don't think that -- Yes, yes, I think that before you can limit franchise or create a sub class of qualified voters that are going to pass on something such as library branch or such as financing capital assets of a junior college district, you've got to have some rational basis for restricting that vote to persons who have rendered property for taxation and Texas had just wholly failed -- Arizona wholly failed and its an interesting thing that our sister State of Oklahoma in 1969 twice ruled on that question and found that that kind of a requirement was constitutional. And then in 1971, following this Court's decision in Phoenix, reversed itself and granted an injunction against the application of such a city ordinance and said, "We're going to follow what the Supreme Court said in Phoenix" and write about the same time that the Supreme Court of Oklahoma was doing that. And the Supreme Court of Texas will say, we sit without talking about restricting voting, without talking about tailoring the restriction to fit that particular function or need that the state had but just summarily said, we don't think there's anything wrong with making people pay their fair share of the taxes and the tax assessor must exhaust every means of ferreting out and locating Mr. Kendall's personal property that he has failed to render but has had a portion of it rendered by the tax assessor and does qualify him to vote. I suggest that while there may be, it may not be the wealth qualification that was raised in the poll tax. It still is an additional requirement that there is no rational basis for it. It does not assist in the collection of taxes because there's never been any effort on the part of and there's no evidence in the record that the tax assessor has made him, these records available to him to render those things to clear.
William H. Rehnquist: Don't you expect that to be in the record of a District Court proceeding when you're talking about the rational basis for a legislative requirement and there is a presumption, isn't there that the legislature may had have a reason for doing something and I would think that's incumbent on the state to produce evidence before the three-judge District Court that they in fact used these mechanisms.
Don Gladden: I think it is in Phoenix. I think Phoenix placed the burden that when you restrict the franchise from the general franchise classification to a special franchise within that classification that this incumbent upon the state to show that there was some imperative necessity to do that in support of a compelling state interest.
William H. Rehnquist: And that you prove it by live witnesses and testimony at the District Court hearing?
Don Gladden: There were no live witnesses. We stipulated all the evidence and there was no suggestion, there was some testimony by the city tax assessor that it's important that we have taxes to run our city.
William H. Rehnquist: My suggestion is -- my suggestion is that your -- the rational basis for a legislative enactment isn't something you ordinarily produce by question and answer testimony in a hearing for the three-judge District Court, that's frequently something that is simply argued on the basis of whether its arbitrary and so -- but so your suggestion that the record doesn't contain anything, I would find by no means conclusive.
Don Gladden: Well, I think this. I think that the Court in Phoenix, the Court in Kramer, I found that before there is a sub-classification, a special classification of voters and again that classification nor that there has to be some basis --
Potter Stewart: Compelling state interest.
Don Gladden: Compelling state interest and --
Potter Stewart: Of course that you can't prove ever --
Don Gladden: This is a difficult thing to prove.
Potter Stewart: By any means -- And I appreciate Mr. Justice Stewart's awareness that of the difficulty in proving it but that is the law and it was reaffirmed in Salyer wherein this Court said Phoenix is the law and Kramer is the law and before you can restrict a person's voting privilege and deny one person the right to vote if he is in the general category of voters --
William H. Rehnquist: In Salyer, we stated the holdings of the Phoenix and Cipriano case.
Don Gladden: Yes, this is correct.
William H. Rehnquist: I don't regard that as a re-affirmance of that.
Don Gladden: Well, I'm sorry. I so construed it as being in essence a finding that that was still the law and --
Speaker: Up to this point until just now, you haven't mentioned neither Salyer or Toltec.
Don Gladden: Okay, I don't think that it have any application at all because people who want to go use the library are not as identifiable in terms of benefit and burden as there was in each of those cases. I think that that is a clear distinction. I think that and again Stewart and three-judge court in Stewart said that just the fact that you paid the taxes does not create a compelling state interest so as to restrict a person to -- restrict suffrage to determine whether or not we have a library or a viable Junior College District with some buildings.
Warren E. Burger: But your friend told us that these both have nothing whatever to do with whether there was going to be a library but only as to what mode of financing was to be used.
Don Gladden: An answer to it is that unless there is 6.8 million. Now, we don't have a library. We had two issues in this in the record. We had two issues submitted. We had an issue on whether or not we bought a public transportation system. That carried in the property owner box, in the nonproperty owner box and in the aggregate. We bought the bus system and we've got buses running. We had another issue submitted the same day on the question of whether or not we authorized, not compelled but authorized the City Council of Fort Worth to issue bonds for the purpose of constructing a library, $6.8 million. That carried in the property owner box, that carried in the aggregate but it failed in the proper -- no, excuse me. It carried in the nonproperty owner box. It carried in the aggregate but it failed in the property owner box. The Attorney General of the State of Texas says I will not certify those bonds and absent that we don't have the money to build us a library.
Warren E. Burger: Well, isn't that vote on the basis of what you both have said simply instead of local Gallup poll on whether there should be a library, the City Council has the final decision he said, your friend said.
Don Gladden: The City Council does not because at this moment, they can't issue those bonds unless it carried in those who have rendered property for tax purposes. So --
Speaker: Build them on general revenues if they had them, I take it.
Don Gladden: If they had general revenues, they could do so but in terms of creating a lien against the ad valorem tax structure, they cannot do so absent approval of property owners.
Speaker: What are the sources of revenue in Fort Worth City other than real estate and personal property tax?
Don Gladden: Okay, primarily, the City has real estate personal property tax and a City sales tax of 1% of the gross sales within -- 1% of the gross sales within the city.
Speaker: Is that in addition to the states sales tax?
Don Gladden: Yes, it is in addition to and has to have a referendum vote in that particular metropolitan area where they make the assessment. City of Fort Worth does have a city sales tax.
Speaker: Do you have any licensing taxes?
Don Gladden: Oh! Yes, we do have some -- no, licensing taxes were stricken, there used to be a state licensing tax that city piggyback on but it was repelled and so the licensing tax failed. Thank you very much.
Warren E. Burger: Do you have anything further?
David M. Kendall, Jr.: If I may just take a minute or two. I think that there is one other source Mr. Justice Powell, there is a revenue sharing which has furnished funds for great many improvements in the State of Texas but I don't that necessarily governs. I think really -- I started out stating our position in this and Mr. Gladden hasn't answered it yet and I don't think he can because of the decision in Montgomery case and that is that there is no class. There is no class being discriminated against. Everybody in Texas qualifies to be a -- to render property for taxation. They may or they may not choose to do so. I take issue with what Mr. Gladden said about nobody in -- at the town county renders, I don't know where he gets that, that's not certainly in the record. In the Handy as the Chief Justice pointed out, the fact were the 40 taxpayers rendered a $100.00 so that they could vote in an election. So that's a possibility but there is nothing in this record --
Thurgood Marshall: In Fort Worth --
David M. Kendall, Jr.: What?
Thurgood Marshall: In Fort Worth, how can a man render his personal property?
David M. Kendall, Jr.: Go down to the tax assessor and collector's office and --
Thurgood Marshall: What would he be taxed for? Does Fort Worth have a tax on personal property?
David M. Kendall, Jr.: Yes sir, very definitely. The statistics in the record showed that of there property tax in some -- they have a total of about a $1, 400,000.00 on their ad valorem tax rolls, of that $352,000.00, I'm sorry $352 million is personal property that's subject to taxation in Tarrant County in Fort Worth.
Thurgood Marshall: Isn't that additional property?
David M. Kendall, Jr.: I'm sorry.
Thurgood Marshall: Homes?
David M. Kendall, Jr.: No, homes have come as ad valorem on the real property but I don't know what its comprised of, it can be anything but real property and the record is silent as to --
Thurgood Marshall: Could be automobiles and boats, couldn't it?
David M. Kendall, Jr.: Automobiles and boats, it could be fur coats, it could be bank deposits and securities --
Thurgood Marshall: There is no way has know what?
David M. Kendall, Jr.: Cadillac, isn't it?
Speaker: Diamond ring.
Thurgood Marshall: What he says you don't tax cars in Fort Worth --
David M. Kendall, Jr.: Oh! I don't know where he -- that comes from because certainly not from the record in this case.
Thurgood Marshall: So you know so much of anything on this record, do you?
David M. Kendall, Jr.: Not as to whether or not there are --
Thurgood Marshall: Because I don't know what rendering is yet.
David M. Kendall, Jr.: There is nothing in this record as to whether or not there are people in Fort Worth --
Thurgood Marshall: You know you have to whistle in fact, I don't know, make law without a rendering, is that what you do to the taxes?
David M. Kendall, Jr.: Sometimes I suspect that maybe they do something like but they -- as I understand the rendition as I speak of it here, it is either going to the assessor and collector's office or having him come to yours -- your home, your office or wherever and you submit a list of your property for taxation or if you don't submit one, he submit one -- he submits one for you. Now, Mr. Gladden mentioned, I don't know what its importance is that this is the only library Fort Worth had and the record is silent but in the brief submitted by the City Attorney for the City of Fort Worth that said, that the library district being for the sole purpose of constructing a new central library in addition to the present seven branch libraries and the existing Central Downtown Library. So, the question here was whether this is the way we're going to financed them and the City Council even if this bond issue passed, if the voters hadn't voted overwhelmingly in favor of a bond issue to build a library, there's no --there's nothing to compel the City Council to go forward with that. As a matter of fact, the close rising prices we find very often will pass a bond issue to build a new public building and we knew we get around to build it finally, the bond issue wasn't enough.
Speaker: It's just an authorizing vote, --
David M. Kendall, Jr.: It authorizes -- They may find they can't sell the bonds. There are a lot of things that can come between this election and the building of the building. In -- I want to point out if I may, in Montgomery involved another section of the constitution also which specifically referred to taxpaying voters and nevertheless, they said they did not have to pay taxes to qualify as voters. Thank you very much.
Warren E. Burger: Case is submitted. Thank you gentlemen.