Salyer Land Co. v. Tulare Lake Basin Water Storage District

Mr. Justice Douglas,

with whom Mr. Justice Brennan and Mr. Justice Marshall concur, dissenting.

The vices of this case are fourfold.

First. Lessees of farmlands, though residents of the district, are not given the franchise.

Second. Residents who own no agricultural lands but live in the district and face all the perils of flood which the district is supposed to control are disfranchised.

Third. Only agricultural landowners are entitled to vote and their vote is weighted, one vote for each one hundred dollars of assessed valuation as provided in § 41001 of the California Water Code.

Fourth. The corporate voter is put in the saddle.

There are 189 landowners who own up to 80 acres each. These 189 represent 2.34% of the agricultural acreage of the district. There are 193,000 acres in the district. Petitioner Salyer Land Co. is one large operator, West Lake Farms and South Lake Farms are also large operators. The largest is J. G. Boswell Co. These four farm almost 85% of all the land in the district. Of these, J. G. Boswell Co. commands the greatest number of votes, 37,825, which are enough to give it a majority of the board of directors. As a result, it is permanently in the saddle. Almost all of the 77 residents of the district are disfranchised. The hold of J. G. Boswell Co. is so strong that there has been no election since 1947, making little point of the provision in § 41300 of the California Water Code for an election every other year.

The result has been calamitous to some who, though landless, have even more to fear from floods than the ephemeral corporation.

*736I — I

In Phoenix v. Kolodziejski, 399 U. S. 204, 209, we set out the following test for state election schemes which selectively distribute the franchise:

“Presumptively, when all citizens are affected in important ways by a governmental decision subject to a referendum, the Constitution does not permit weighted voting or the exclusion of otherwise qualified citizens from the franchise.”

Provisions authorizing a selective franchise are disfavored, because they “always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives.” Kramer v. Union School District, 395 U. S. 621, 627. In order to overcome this strong presumption, it had to be shown up to now (1) that there is a compelling state interest for the exclusion, and (2) that the exclusions are necessary to promote the State’s articulated goal. Phoenix v. Kolodziejski, supra; Cipriano v. City of Houma, 395 U. S. 701; Kramer v. Union School District, supra. See also Police Jury of Vermillion Parish v. Hebert, 404 U. S. 807; Stewart v. Parish School Board of St. Charles, 310 F. Supp. 1172, aff’d, 400 U. S. 884. In my view, appellants in this case have made a sufficient showing to invoke the above principles, and the presumption thus established has not been overcome.

Assuming, arguendo, that a State may, in some circumstances, limit the franchise to that portion of the electorate “primarily affected” by the outcome of an election, Kramer v. Union School District, supra, at 632, the limitation may only be upheld if it is demonstrated that “all those excluded are in fact substantially less interested or affected than those the [franchise] includes.” Ibid. The majority concludes that “there is no way that the *737economic burdens of district operations can fall on residents qua residents, and the operations of the districts primarily affect the land within their boundaries.”

But, with all respect, that is a great distortion. In these arid areas of our Nation a water district seeks water in time of drought and fights it in time of flood. One of the functions of water districts in California is to manage flood control. That is general California statutory policy.1 It is expressly stated in the Water Code that governs water districts.2 The California Supreme Court ruled some years back that flood control and irrigation are different but complementary aspects of one problem.3

From its inception in 1926, this district has had repeated flood control problems. Four rivers, Kings, Kern, Tule, and Kaweah, enter Tulare Lake Basin. South of Tulare Lake Basin is Buena Vista Lake. In the past, Buena Vista has been used to protect Tulare Lake Basin by storing Kern River water in the former. That is how Tulare Lake Basin was protected from menacing floods in 1952. But that was not done in the great 1969 flood, the result being that 88,000 of the 193,000 acres in respondent district were flooded. The board of the respondent district — dominated by the big landowner J. G. Boswell Co. — voted 6^4 to table the motion that would put into operation the machinery to divert the flood waters to the Buena Vista Lake. The reason is that J. G. Boswell Co. had a long-term agricultural lease in the Buena Vista Lake Basin and flooding it would have interfered with the planting, growing, and harvesting of crops the next season.

The result was that water in the Tulare Lake Basin rose to 192.5 USGS datum. Ellison, one of the appellants *738who lives in the district, is not an agricultural landowner. But his residence was 15% feet below the water level of the crest of the flood in 1969.

The appellee district has large levees; and if they are broken, damage to houses and loss of life are imminent.

Landowners — large or small, resident or nonresident lessees or landlords, sharecroppers4 or owners — all should have a say. But irrigation, water storage, the building of levees, and flood control, implicate the entire community. All residents of the district must be granted the franchise.

This case, as I will discuss below, involves the performance of vital and important governmental functions by water districts clothed with much of the paraphernalia of government. The weighting of votes according to one’s wealth is hostile to our system of government. See *739Stewart v. Parish School Board of St. Charles, 310 F. Supp. 1172, aff’d, 400 U. S. 884. As a nonlandowning bachelor was held to be entitled to vote on matters affecting education, Kramer v. Union School District, supra, so all the prospective victims of mismanaged flood control projects should be entitled to vote in water district elections, whether they be resident nonlandowners, resident or nonresident lessees, and whether they own 10 acres or 10,000 acres. Moreover, their votes should be equal regardless of the value of their holdings, for when it comes to performance of governmental functions all enter the polls on an equal basis.

The majority, however, would distinguish the water storage district from “units of local government having general governmental powers over the entire geographic area served by the body,” Avery v. Midland County, 390 U. S. 474, 485, and fit this case within the exception contemplated for “a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents.” Id., at 483-484. The Avery test was significantly liberalized in Hadley v. Junior College District, 397 U. S. 50. At issue was an election for trustees of a special-purpose district which ran a junior college. We said,

“[S]ince the trustees can levy and collect taxes, issue bonds with certain restrictions, hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior college, their powers are equivalent, for apportionment purposes, to those exercised by the county commissioners in Avery. . . . [T]hese powers, while not fully as broad as those of the Midland County Commissioners, certainly show that the trustees perform important governmental functions . . . and have suffi-*740dent impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here.” Id., at 53-54. (Emphasis added; footnote omitted.)

Measured by the Hadley test, the Tulare Lake Basin Water Storage District surely performs “important governmental functions” which “have sufficient impact throughout the district” to justify the application of the Avery principle.

Water storage districts in California are classified as irrigation, reclamation, or drainage districts.5 Such state agencies “are considered exclusively governmental,” and their property is “held only for governmental purpose,” not in the “proprietary sense.”6 They are a “public entity,” just as “any other political subdivision.” 7 That is made explicit in various ways. The Water Code of California states that “[a] 11 waters and water rights” of the State “within the district are given, dedicated, and set apart for the uses and purposes of the district.” 8 Directors of the district are “public officers of the state.” 9 The district possesses the power of eminent domain.10 Its works may not be taxed.11 It carries a governmental immunity against suit.12- A district has powers that relate to irrigation, storage of water, drainage, flood control, and generation of hydroelectric energy.13

Whatever may be the parameters of the exception alluded to in Avery and Hadley, I cannot conclude that *741t.bis water storage district escapes the constitutional restraints relative to a franchise within a governmental unit.

II

When we decided Reynolds v. Sims, 377 U. S. 533, and discussed the problems of malapportionment we thought and talked about people — of population, of the constitutional right of “qualified citizens to vote,” (id., at 554) of “the right of suffrage,” (id., at 555) of the comparison of “one man’s vote” to that of another man’s vote. Id., at 559. We said:

“Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.” Id., at 562.

It is indeed grotesque to think of corporations voting within the framework of political representation of people. Corporations were held to be “persons” for purposes both of the Due Process Clause of the Fourteenth Amendment 14 and of the Equal Protection Clause.15 Yet, it is unthinkable in terms of the American tradition that corporations should be admitted to the franchise. Could a State allot voting rights to its corporations, weighting each vote according to the wealth of the corporation? Or could it follow the rule of one corporation, one vote?

*742It would be a radical and revolutionary step to take, as it would change our whole concept of the franchise. California takes part of that step here by allowing corporations to vote in these water district matters16 that entail performance of vital governmental functions. One corporation can outvote 77 individuals in this district. Four corporations can exercise these governmental powers as they choose, leaving every individual inhabitant with a weak, ineffective voice. The result is a corporate political kingdom undreamed of by those who wrote our Constitution.

Calif. Stat. 1921, c. 914, § 58.

Calif. Water Code § 44001.

Tarpey v. McClure, 190 Cal. 593, 213 P. 983.

Since 1938, sharecroppers have been included in federal regulations defining “farmers” who are entitled to vote on referenda concerning marketing quotas under the Agricultural Adjustment Act.

“Farmers engaged in the production of a commodity. For purposes of referenda with respect to marketing quotas for tobacco, extra long staple cotton, rice and peanuts the phrase ‘farmers engaged in the production of a commodity’ includes any person who is entitled to share in a crop of the commodity, or the proceeds thereof because he shares in the risks of production of the crop as an owner, landlord, tenant, or sharecropper (landlord whose return from the cfop is fixed regardless of the amount of the crop produced is excluded) on a farm on which such crop is planted in a workmanlike manner for harvest: Provided, That any failure to harvest the crop because of conditions beyond the control of such person shall not affect his status as a farmer engaged in the production of the crop. In addition, the phrase ‘farmers engaged in the production of a commodity’ also includes each person who it is determined would have had an interest as a producer in the commodity on a farm for which a farm allotment for the crop of the commodity was established and no acreage of the crop was planted but an acreage of the crop was regarded as planted for history acreage purposes under the applicable commodity regulations.” 7 CFR § 717.3 (b).

Calif. Water Code § 39060.

Glenn-Colusa Irrigation District v. Ohrt, 31 Cal. App. 2d 619, 623, 88 P. 2d 763, 765.

Calif. Govt. Code § 811.2.

Section 43158. See also id., § 39061.

In re Madera Irrigation District, 92 Cal. 296, 322, 28 P. 272, 278.

Calif. Water Code § 43530.

Id., § 43508.

Calif. Govt. Code §§811.2, 815.

Calif. Water Code §§ 42200, 43000, 43025, 44001.

Minneapolis & St. Louis R. Co. v. Beckwith, 129 U. S. 26, 28.

Pembina Comolidated Silver Mining & Milling Co. v. Pennsylvania, 125 U. S. 181, 188-189; Santa Clara County v. Southern Pacific R. Co., 118 U. S. 394, 397.

Calif. Water Code § 41004.