Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
The immediate question for decision is whether we should direct the trial court to issue a preliminary injunction, pending the final disposition of a suit, to permanently enjoin the City of South Hutchinson from selling bonds issued by it for the construction of a waterworks system, on the alleged grounds that the complainant will be required to pay 46% of the costs of the improvements without receiving any benefits therefrom.
The complainant pleads that it is the owner of described property in Reno County, Kansas, comprising approximately 22% of the total area within the boundaries of the corporate limits of South Hutchinson, with an assessed valuation of $412,670, or approximately 46% of the total assessed value of all property within the corporate limits in the sum of $879,164. It pleads a city election on June 3, 1946, authorizing the issuance of general obligations in the form of bonds aggregating $115,000, to finance a waterworks system; that pursuant to the election and mandate of the voters, the bonds were issued, and pro rata assessment of taxes on all property within the boundaries of the City, including the property of the complainant; that the governing body of the City entered into a contract for the construction of the waterworks system in the sum of approximately $106,467.40. It is specifically averred that the construction plans for the waterworks system do not provide for a supply of water to any of the property owned by complainant for any purposes whatsoever; that the nearest water pipe contemplated by the proposed construction plans terminates about three-quarters of a mile from plaintiff's property; that the additional cost of facilities for furnishing plaintiff's business with an adequate water supply would amount to not less than $70,000, and that the additional cost of furnishing said water to plaintiff is not within the statutory limitation imposed upon the City for such improvements, consequently the waterworks system, when constructed, will neither presently nor in the future, furnish water or any other benefit to plaintiff's property or the nearby dwellings.
It is said that the governing body of the City of South Hutchinson presently intends, and will unless enjoined, register, issue, and sell the bonds in question, which, when issued, will be negotiable and constitute a lien upon all property included within the corporate limits of the City, including the property of the complainant; and that in accordance with the statute, the County Clerk and County Treasurer of Reno County will be authorized to, and will assess and collect taxes for the payment of the bonds as general obligations of the City; that although burdened with 46% of the costs of the proposed waterworks system, plaintiff will receive no benefit from it, and that therefore the issuance of the bonds and the levy of the taxes to pay for same against the property of complainant is "palpably arbitrary and a plain abuse of power, to the irreparable damage and loss of the plaintiff contrary to the equal protection of the law, and amounts to a taking of property without due process of law." The complainant moved to enjoin the constituted authorities from selling the bonds, pending final disposition of the case, and for permanent injunctive relief. The City moved to dismiss the complaint for failure to state a claim.
Upon consideration of the facts as alleged, the trial court denied any injunctive relief, but before the temporary restraining order was dissolved, we granted a stay pending a hearing and decision here. The trial court did not specifically rule upon the motion to dismiss, but ordered the case calendared for trial after joinder of issues. It was apparently of the opinion however that the complainant could not prevail upon the facts as alleged. Thus, we cannot say that the court held the complaint wholly insufficient to state a claim upon which relief could be granted. In this posture, we must now decide whether, upon the face of the complaint, the trial court abused its discretion in refusing to grant temporary injunctive relief, pending final disposition of the case on its merits.
Manifestly, if the complainant will ever be entitled to injunctive relief, it must have it now, because it will be too late after the bonds are sold and in the hands of purchasers. (See Gen. Statutes of Kansas, 1935, Sec. 10-112.) Furthermore, no other remedy is available to the complainant, either in law or equity.
Generally, "If the questions presented in a suit for injunction are grave and difficult, and the injury to the moving party will be certain, great, and irreparable if the motion for the interlocutory injunction is denied and the final decision is in his favor, while if the decision is otherwise, and the injunction is granted, the inconvenience and loss to the opposing party will be inconsiderable, or probably may be indemnified by a bond, the injunction usually should be granted." Love v. Atchison T. & S.F.R. Co., 8 Cir., 185 F. 321, 331; see also Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S. Ct. 256, 73 L. Ed. 972; City of Council Bluffs v. Omaha & C.B. St. R. Co., 8 Cir., 9 F.2d 246; Utah Power & Light Co. v. Pfost, D.C., 52 F.2d 226; Six Companies, Inc. v. Stinson, D.C., 58 F.2d 649; Allen W. Hinkel Dry Goods Co. v. Wichison I. Gas Co., 10 Cir., 64 F.2d 881; Pratt v. Stout, 8 Cir., 85 F.2d 172.
In the cases of Lewis v. City of South Hutchinson, and McMillan v. Montford, et al., 174 P.2d 51, recently decided by the Supreme Court of Kansas, other taxpayers owning property within the city limits of South Hutchinson complained that 46% of the total valuation of the property in the City would not be served by the waterworks system, resulting in irreparable damage and injury to those property owners who would not be served by the improvements. The Kansas court answered that the statutes authorizing municipalities to incur obligations for a waterworks system, or any other public improvement, did not contemplate that all persons charged with the tax burden of the improvements should receive benefits therefrom. It was affirmed that in the absence of statutory limitations upon the power of municipal corporations, courts would not ordinarily interfere with the administrative discretion, unless a clear and convincing showing is made that the proposed action of the municipal officers constituted an arbitrary abuse of power equivalent to fraud or bad faith. And the court was unanimously of the opinion that the allegations of the complaint were insufficient to show that the city officials had abused their power, acted fraudulently, or that their acts were ultra vires. Thus, we have the word of the Supreme Court of Kansas that the procedural steps, pursuant to which the tax was imposed, were regular and within the statutory power of the taxing authority. This ruling is of course conclusively binding here, but the constitutional question of due process under either the State or Federal Constitutions, Const. Bill of Rights, § 18; U.S.Const.Amend. 14, was neither tendered nor decided by the Kansas court, and it is therefore open here.
In considering the seriousness of the constitutional question proposed by these pleadings, it is well to remind ourselves that the Fourteenth Amendment imposes only "extremely limited" restrictions upon the taxing power of a sovereign state. Wisconsin v. J. C. Penny Co., 311 U.S. 435, 61 S. Ct. 246, 85 L. Ed. 267, 130 A.L.R. 1229; Carmichael v. Southern Coal Co., 301 U.S. 495, 57 S. Ct. 868, 81 L. Ed. 1245, 109 A.L.R. 1327; Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 156, 17 S. Ct. 56, 41 L. Ed. 369. The Federal Constitution does not require precise equality or uniformity in taxation - hardships in taxing systems are one of the "imperfections of human things". Louisville & N.R. Co. v. Barber Asphalt Co., 197 U.S. 430, 25 S. Ct. 466, 467, 49 L. Ed. 819; Dane v. Jackson, 256 U.S. 589, 41 S. Ct. 566, 65 L. Ed. 1107; Cooley Taxation, 4th Ed., Vol. 1, Sec. 259.
It is not the judicial province to correct every abuse of legislative taxing power. In the words of Mr. Chief Justice Marshall, "The interest, wisdom, and justice of the representative body, and its relations with its constituents, furnish the only security, where there is no express contract, against unjust and excessive taxation; as well as against unwise legislation generally." Providence Bank v. Billings, 29 U.S. 514, 561, 7 L. Ed. 939; Dane v. Jackson, supra; French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S,.ct. 625, 45 L. Ed. 879; Cooley, Sec. 67. It is no constitutional defense to a tax that the taxpayer is not directly benefited thereby, or is less benefited than others who pay the same or less tax. Kelly v. Pittsburgh, 104 U.S. 78, 26 L. Ed. 658; Thomas v. Gay, 169 U.S. 264, 280, 18 S. Ct. 340, 42 L. Ed. 740; Houck v. Little River Dist., 239 U.S. 254, 36 S. Ct. 58, 60 L. Ed. 266. For example, "every citizen is bound to pay his proportion of a school tax, although he has no children, or is not a resident, and this applies also to corporations; of a police or fire tax, although he has no buildings or personal property; or of a road tax although he never used the road. In other words, a general tax cannot be dissected to show that, as to certain constituent parts, the taxpayer receives no benefits. So property within the limits of a municipality is subject to local taxation although it derives little or no benefit from the municipal government." Cooley, Sec. 89, p. 214. The fact of living in an organized society carries with it the obligations to contribute to its general welfare, whether or not the recipient of particular benefits. Furthermore, the legislative determination that the property taxed will be benefited by the public improvement for which it is assessed is ordinarily conclusive. Thomas v. Kansas City Southern R. Co., 261 U.S. 481, 43 S. Ct. 440, 67 L. Ed. 758.
But, however great the legislative power of taxation, it is not wholly without constitutional limitations. The due process and equal protection clauses of the Constitution do provide some measure of protection against the abusive exaction of a tax. The test of due process, say the courts, is whether the taxing power exerted by the state bears fiscal relation to protection, opportunities and benefits given by the state. In other words, the query is, what has the state given for which it may ask return. Wisconsin v. J. C. Penny Co., supra. If the tax imposed clearly results in such a flagrant and palpable inequality between the burden imposed and the benefit received that it amounts to an arbitrary taking of property without compensation, it is said to violate the due process guaranty under the Fourteenth Amendment. All of the cases which have affirmed the broad powers of taxation have recognized these limitations, i.e., see Dane v. Jackson, supra; Henderson Bridge Co. v. Henderson City, 173 U.S. 592, 614, 19 S. Ct. 553, 43 L. Ed. 823; Houck v. Little River Dist., supra; Cooley, Sec. 144.
In Kansas City Southern R. v. Road Improvements Dist., 256 U.S. 658, 41 S. Ct. 604, 65 L. Ed. 1151, a tax imposed in the form of local assessments upon the property of a railroad company, based upon a formula wholly different from the one used in determining the tax liability of other landowners in the same taxing district, was nullified as unconstitutional, unequal and discriminatory. Again in Thomas v. Kansas City Southern R. Co., supra, the Supreme Court unanimously nullified a drainage assessment on the property of a railroad company on the grounds that no direct benefits were conferred, and the indirect benefits, if any, were so completely disproportionate and remote as to be grossly discriminatory, hence unconstitutional. The Supreme Court of Kansas has likewise recognized the limitations on the taxing power under the State and Federal Constitutions. In Atchison T. & S.F.R. Co. v. Clark, 60 Kan. 826, 58 P. 477, 478, 47 L.R.A. 77, the Kansas court held that a law creating a taxing district and levying a tax on all property located therein, including property of the Railroad Company, but explicitly excluding such property from the benefits of the tax, was constitutionally invalid. Said the court, "absolute equality in taxation is of course unattainable, but a law the manifest purpose and result of which is discrimination and inequality cannot be sustained."
The authorities sometimes draw a distinction between a general ad valorem tax levied for the general welfare of the whole community, and a tax in the form of an assessment to finance special improvements designed to benefit the property located within the particular taxing district. And it may be said that the cases wherein the courts have nullified the tax, or the law imposing it, fall within the category of special assessments for benefits to property located within a particular taxing jurisdiction. See McQuillin Munic. Corp. Rev. Vol. 5, Sec. 2165. But whether a tax is so arbitrary, unequal and discriminatory as to deny due process, does not depend upon its legislative definition, form or labor. Wisconsin v. J. C. Penny Co., supra. Every burden which the state imposes upon its citizens with the view of revenue for ...