Morton Salt Co. v. City of South Hutchinson

whether the “main issue” was truck driven truck hit Colonial road. him off the Kleibor knocked of some source instructions were the

These foreman jury

confusion clarify point court to

asked jury again told the crowding. The court arising evi- only issue was Kleibor’s truck

dence was have the road. To off

hit and knocked crowding would

given the instruction as findings possible opened

have the door evidence, conjec-

based, but on not on the jury speculation. The returned

ture or and there the defendant

verdict

ample support this evidence to verdict. judgment

There was no error be-

low is affirmed.

Affirmed. SALT CO.

MORTON v. CITY OF SOUTH et al. HUTCHINSON

No. 3446. Appeals, Tenth

Circuit Court Circuit.

Feb.

HUXMAN, dissenting. Judge, Circuit Davis, Hutchinson, Kan., Roy C. Wienke, Harvey Chicago, ap Ill., pellant. Hunter, Hutchinson, Kan., Richards J. Jones, (Walter Jr., F. Y. Jones Hutchinson, Kan., brief),

both on appellees. PHILLIPS, HUXMAN, Before MURRAH, Judges. Circuit MURRAH, Judge. Circuit immediate decision is we should direct trial court to injunction, preliminary pending issue a suit, disposition permanently aof final enjoin Hutchinson from issued it for the con- selling bonds of a waterworks struction complainant will alleged grounds that the required County Reno of the costs Clerk and Treasurer Coun- to, improvements ty bene- assess and receiving without authorized payment collect taxes for the of the bonds fits therefrom. general obligations City; of complainant pleads the burdened the costs of 46% in Reno Coun- owner of described proposed of plain- the waterworks ty, approximately Kansas, comprising 22% it, tiff and will receive no benefit from within the boundaries of of the total area therefore the the bonds and issuance of the Hutchinson, corporate limits of the levy same of the taxes to for $412,670, with an of assessed valuation complainant the “palpably approximately total assessed the arbitrary plain and of power, to corporate value oí all the within irreparable the damage and loss of the $879,164. pleads limits the sum It plaintiff protection contrary equal authorizing election on June law, the and amounts taking prop- to a general obligations in the issuance of the erty process without due of law.” The $115,000, fi- form of bonds to aggregating ' complainant enj moved the to oin consti- pursuant system; nance a waterworks tuted bonds, authorities the selling voters, and the the election mandate of disposition pending case, final pro issued, the bonds were rata assess-^,' permanent injunctive for relief. The on all taxes complaint moved dismiss the for failure City, boundaries of the including state claim. complainant; that the governing Upon consideration of the facts as al- body entered into a contract leged, any injunctive trial court denied for the construction relief, but before the temporary restraining system in sum approximately dissolved, was granted order stay we $106,467.40. specifically It averred hearing pending a and decision here. The construction, plans for the waterworks specifically trial did upon rule provide do supply of water dismiss, motion to the case ordered by complain- owned joinder calendared for trial after of issues. any purposes whatsoever; ant for apparently opinion was however pipe contemplated nearest water by complainant upon not prevail could plans proposed construction terminates alleged. Thus, the facts as we cannot say from, three-quarters plain- about of a mile complaint that the court held wholly in- property; that the additional cost of tiff’s upon sufficient to state a claim re- furnishing plaintiff’s facilities business In, granted. posture, lief could be we adequate supply with an water must now whether, upon decide the face less, $70,000, amount to not than and that complaint, trial court abused its furnishing the additional cost said water refusing grant discretion in temporary plaintiff statutory relief, injunctive disposition final pending imposed upon the City limitation for such of the case on merits. consequently improvements, the waterworks constructed, system, when pre- neither Manifestly, complainant if the will ever future, sently relief, injunctive nor furnish water entitled to it must have plaintiff’s now, other benefit because it will be too property it late after the nearby dwellings. bonds are and in or the pur- sold the hands of (See chasers. Gen. Kansas, Statutes of governing body said that It is Furthermore, 10-112.) no other presently Hutchinson City of South in- remedy is available complainant, tends, register, unless enjoined, and will equity. either law or issue, question, which, the bonds in and sell issued, negotiable Generally, when questions consti- “If pre sented in a injunction included a lien suit for tute grave difficult, corporate of the City, including limits injury and the to the moving certain, complainant; party great, will be irreparable statutes, motion with the County interlocutory injunc- accordance authority. This is of course ruling final decision is denied tion here, conclusively is other constitu- favor, binding but the his decision if the while question either tional injunction granted, of due under wise, and the Constitutions, Const. State or opposing par Federal loss to inconvenience and Rights, Bill U.S.Const.Amend. inconsiderable, probably ty § will be bond, injunction neither tendered nor indemnified court, open At here. Kansas and it is granted.” therefore Love usually should be Cir., Co., 8 & F. chison S. R. T. F. seriousness considering Conway, 279 Ohio Oil Co. see also proposed of the constitutional 972; City 256, L.Ed. 813, 49 S.Ct. 73 U.S. pleadings, these remind our well to St. R. Omaha & C. B. Bluffs v. of Council im selves Fourteenth Amendment Cir., 246; Power & Co., Utah 8 9 F.2d poses limited” only restrictions “extremely 226; ost, D.C., 52 F.2d Pf Light Co. v. sovereign state. upon taxing power of a D.C., Stinson, 58 Companies, Inc. v. Six Co., Penny 311 U.S. v. C. Wisconsin J. Dry Goods 649; Hinkel Allen W. F.2d 435, 267, 246, 85 130 A.L. 61 S.Ct. L.Ed. Cir., Co., 10 64 Gas Co. Wichison I. v. Co., 1229; Coal Carmichael v. Southern R. Cir., 8 85 F.2d 172. 881; Stout, Pratt v. F.2d 1245, 495, 868, 81 301 U.S. 57 S.Ct. L.Ed. v. Lewis In the cases 1327; Irrigation Fallbrook 109 A.L.R. Mont Hutchinson, McMillan v. and 156, 112, Bradley, S.Ct. Dist. v. 164 U.S. 17 recently 51, ford, al., 174 P.2d et 56, 369. Federal Constitution 41 L.Ed. The Kansas, other- Supreme Court by the require precise equality not or uni does owning taxpayers hardships taxing formity in taxation — Hutchinson com South' city. limits of systems “imperfections one of valuation total of the plained that 46% things”. R. v. & N. Co. human Louisville not be City would of the Co., 430, Asphalt 25 S.Ct. 197 U.S. Barber resulting system, by the served 467, 819; Jackson, 466, 49 Dane v. L.Ed. injury those damage irreparable and 1107; 566, 589, 41 65 L.Ed. 256 S.Ct. U.S. be served owners who would Taxation, Ed., 1, 4th Vol. Sec. 259. Cooley improvements. Kansas court judicial province to It is not the authorizing mu statutes answered tax every legislative correct water obligations for nicipalities incur power. In of Mr. Chief ing words im public other or works Jus wisdom, interest, Marshall, tice “The contemplate provement, did not body, and its justice representative charged burden of persons with the tax constituents, relations with its furnish the receive benefits improvements should security, only express where there is no affirmed It was therefrom. contract, unjust against excessive taxa upon limitations statutory absence of tion; as legislation well as unwise municipal corporations, courts power generally.” Billings, Providence Bank v. ordinarily interfere with riot 514, 561, 939; 29 U.S. 7 L.Ed. Dane v. discretion, unless a clear administrative Jackson, supra; Asphalt French Barber made showing convincing 324, Co., 181 U.S. Paving S.Ct. municipal officers proposed action 879; Cooley, Sec. is no L.Ed. 67. power arbitrary abuse constituted constitutional tax that defense to a or bad faith. equivalent to fraud And taxpayer directly thereby, benefited unanimously opinion that was than others pay is less benefited who complaint were allegations Kelly Pittsburgh, less same or tax. show that officials insufficient to Gay, 26 L.Ed. Thomas v. fraudulently, U.S. acted power, their had abused 264, 280, Thus, were ultra vires. acts their or that Dist., Little River Houck v. Supreme Court of the word have we example, 266. For steps, pursuant procedural Kansas propor is bound to his citizen imposed, regu “every were tax to which tax, although he has no power tion a school statutory lar ap- form and this of local children, resident, upon prop- assessments or is not erty police corporations; company, plies a railroad based also buildings or formula tax, although wholly no he has used different one fire liability al- personal determining or of a property; road the tax other district, though never used the road. in the same he landowners unconstitutional, be dissected words, general unequal tax cannot was nullified as parts, that, Again discriminatory. certain constituent show in Thomas v. Co., Kansas taxpayer supra, benefits. receives no So Southern municipality unanimously limits of nullified drainage subject it derives assessment on the local of a* taxation gov- railroad municipal grounds on the no benefit from little conferred, The direct benefits in- Cooley, p. were ernment.” benefits, any, car- living organized society completely fact direct in an were disproportionate obligations be. ries to contribute remote welfare, discriminatory, grossly re- general unconstitu- hence cipient particular tional. The of benefits. Further- Kansas more, recognized has likewise legislative limitations on the determination the taxing power the the Fed- by taxed will be benefited under the State and public improvement which is for it Constitutions. In Atchison & S. assessed eral T. Clark, 826, 477, is ordinarily Thomas Kan- F. R. v. 60 58 conclusive. Co. Kan. P. 478, Co., 481, 77, sas R. 261 City Southern U.S. 43 47 the Kansas L.R.A. court held 440, creating taxing S.Ct. that a law a district L.Ed. 758. levying tax on located there- But, legisla great however the in, including property Railroad Com- of the (cid:127) taxation, power tive wholly it is not pany, explicitly excluding but without constitutional limitations. The tax, the benefits of constitu- process equal protection due clauses of court, tionally invalid. Said the “absolute provide measure Constitution do some is equality taxation of course unattain- in protection against abusive exaction able, a law purpose manifest and re- process, say test due a tax. The js inequal- suJt Gf discrimination courts, is whether taxing power exerted tay cannot be sustained.” by fiscal protec state bears relation to The authorities sometimesdraw tion, 4. opportunities and given benefits general distinction between a ad valo words, state. In is, other the query general rem tax levied welfare given what has state may for which it community, the whole a tax ask return. Wisconsin Penny Co., J.C. form an special assessment to finance supra. imposed If the tax clearly results improvements designed prop benefit flagrant in such a inequality and palpable erty particular taxing located imposed between the burden and the And it may district. be said that the cases benefit received that it amounts to arbi tax, wherein the courts have nullified or trary taking of property compen without it, imposing category law fall sation, is said to violate the due special prop assessments benefits guaranty under the Amend Fourteenth particular located taxing within a All ment. cases which have affirmed McQuillin jurisdiction. Corp. See Munic. powers recog broad of taxation have 5, Vol. Sec. 2165. But Rev. taxa limitations, e., nized these i. see Dane v. arbitrary, unequal discriminatory is Jackson, supra; Bridge Henderson v.Co. process, due deny does not depend 592, City, 614, Henderson 173U.S. 19 S.Ct. legislative definition, its upon form ta or 553, Houck v. L.Ed. Little River Penny Co., C. supra. ble. Wisconsin v. J. Dist., supra; Cooley, Sec. 14 imposes Every upon burden which the state (cid:127) Kansas Southern citizens with the view of v. Road its revenue for Improvement Dist., support government of its subdivisions, imposed political tax levied under the presented be de taxation, power should whether under a full designation. first after some cided tax trial name Ed., Limitations, hearing. 8th United Cooley Cf. Wilshire Oil Co. v. Constitutional States, p. 1050. Rorick, Cir., 112 894. F.2d Cone v. exaction is in Whether the special temporary injunction special If assessment for a form a issued, hearing for the tax after improvement, general a full unconstitutional, the tax welfare, test be declared the constitutional should general payer of given or anything is would nevertheless' be saddled always whether Indeed, If, the its burden-—this much conceded. is taken. for that which fered hand, ultimately creation the other the tax is de purpose for the underlying constitutional, 'City consti clared be ade special districts to attain a can relationship benefits quately by an against any tutional indemnified loss balance Cooley imposed. appropriate right It seems for burdens bond. therefore conferred enjoin just Taxation, Vol. trial court direct questions until sale bonds may di conferred benefits presented their bill tangible, paving such as the rect and merits, provided complainant executes taxpayer’s residence street in front bond, approved good and sufficient to his business, water or sewer line court, $25,000.00, sum trial intangi doo.r; or, indirect and result indemnify loss ble, as or sewer such a waterworks ing injunction. from issuance the the of tax which, unavailable to the to The case is directions bene reversed with to the payer, redounds nevertheless preliminary injunction, pending grant the community he is of which whole fit of the disposition the less con final of case. tax is no Certainly the part. a benefit is the conferred stitutional because HUXMAN, intangible. Judge (dissenting). Circuit and indirect view, judgment my the of the trial complaint in to allegation the The only ques be court should affirmed. Our taxpayer required that the will be the effect to determine whether the trial tion court is city im tax burden for a of the to 46% refusing abused discretion in enter a its it, provement available to which will be temporary injunction. constitutes an What benefit, it can receive from which no and such a has discretion in case been of certainly ques serious constitutional poses a Supreme in Court clearly defined the notice, even may judicial take We tion. Conway, 279 Oil Co. v. Ohio complaint, proposed that the the the face of : as follows system redound to the would ap questions by an presented “Where community, in virtue the whole benefit of interlocutory injunction plication for an health, safety, contribution of its party injury moving to the and the grave, thereof, morals, general welfare and and irreparable, ap if the and will be certain people included all of the and the final be denied decree be plication and City directly be either within the favor, injunction be while his if thereby. But, whether indirectly benefited party, even injury opposing granted indirect of the total tax for the burden 46% benefits conferred favor, be in his if the final be decree grossly dispropor is inconsiderable, adequately in may be discriminatory to amount tionate as n bond, injunction usually a demnified taking without due granted.” bewill law, poses ques serious constitutional also will be injury company only That tion which should after irreparable ultimately pre- complete hearing. The trial court certain full and denied, injunction vails, is must conclusively if the ruled these con has not registered, admitted, when once because questions, and it not within stitutional delivered, legal become these bonds appeal so. sold scope this us do We obligations city binding merely that a serious hold constitutional and city.1 allegation On The in the upon all lien construction hand, could while loss furnish other other substantial no benefit to such city nearby buildings issuance an result statement to the fact, failed to estab- ultimate injunction, if is a conclusion of invalidity, pleader, the city and therefore as does not lish its claim stand adequate then, an an loss admitted fact. The question, such sole secured then, ultimate, whether there legal The decision in bond. substantial allegations the question upon whether whether the turns Amend Fourteenth complaint present United pre a substantial States Constitution company’s city regards vents the contention company’s on city may levy prop an assessment on the same basis case. this erty under the circumstances taxed construction general city improvement determination, ad under these purpose of this For the facts. mitted There complaint claim pleaded here that facts well proceeded the city admitted, an unwarranted being are taken as true. stand manner, arbitrary or that it com corporation’s valued from which The facts pany’s property purpose for the these bonds must enjoin the these right to sale of ’ higher assessments alleges at valuation than was are these: It be established placed generally. Nor of.property is the owner plaintiff support could comprises approxi- charge be South Hutchinson cause in city, the recent case Lewis the total area mately 22% Hutchinson, as- of the total Kan. 174 P.2d which constitutes city; of Kansas, in a of all value sessed opinion, unanimous applicable amount held bonds voted these were empower $115,000 statutes finance to construct wa a waterworks and tax the property terworks city; pursuant election city for voters, the cost thereof. the bonds were mandate also validity on established the and regularity issued of taxes pro rata assessments all the election proceedings within the boundaries bond including complainants, leading up to the city, issuance these bonds. The Kansas court complaint alleges every question, then answered was made. The save the federal question, contract states letting that such urged that is in plans provide supply for case. It specifically not this do of water held a that Kansas Statutes any by contemplate did owned com- must one whatsoever; plainant any purpose for receive direct a benefit from im such pipe contemplated provement by nearest water before his property could be plans three-quarters payment about a terminates taxed for the thereof. The federal replete plaintiff’s property; from courts mile the ad- with cases holding furnishing ditional of facilities for same The majority opinion cites, cost effect.2 plaintiffs adequate apparent such with an sup- approval, water all of these author $70,000, ply would amount to not less than ities to the effect that property a within expenditure additional such municipality is not must bear its share of local imposed statutory limits the taxes little receiving or bene no improvements, city therefrom, for such and that con- fit including the decision by sequently when con- Court in waterworks Thomas v. Kansas Co., presently neither nor structed Southern R. 481, 440, U.S. 43 S.Ct. 758, any future water furnish or other benefit to 67 effect that legis “the plaintiff’s property nearby dwellings. lative determination that property taxed Kan., 1935, 430, 466, 819; See Gen.Statutes 25 S.Ct. 49 L.Ed. Mis souri Pac. R. v. Road Dist., 10-112. 266 U.S. 31, 237; Hill v. Kelly See Gold Caledonia Silver Min. 69 L.Ed. C.C.Nev., Fed.Cas.5512, Co., Pittsburgh, 658; 10 Fed.Cas. 104 U.S. 26 L.Ed. Gay, Decatur, Thomas v. U.S. S. Illinois Central R. v. Ct. Louisville N.& 37 L.Ed. 132. Asphalt Co., Barber Co. v. improvement plaintiff’s pro- public its pays benefited The now ordinarily taxes, as portionate city conclu- which it is share of all such assessed is taxes, sive,” petition taxes, police taxes but then concludes that school and fire officials, legal question city wheth-

presents salaries well as other a as substantial property, lawfully within company’s taxes for functions. general governmental er the general city, may property may taxed for If not be for this its taxed case, law, purpose, legality this purpose authorized it is difficult to see how the bene- any no direct these it receives other taxes its merely because sustained, can it must because likewise fit therefrom. pay di- thereof. It receives more no having no chil- person corporation If any of it rect benefit from than these taxes city must resident of being or not dren It does tax for the waterworks. pay proportion of the school its nevertheless just much the wa- receives benefit from tax, police or fire proportion of or its tax it of these terworks does buildings personal although it has no taxes. its Followed ultimate con- city, proportion- or its clusion, plaintiff this would mean tax, although never share of road ate company canijot be taxed for of these road,3 can constitutional I see no uses purposes, because it receives bene- no direct inhibition, under the Fourteenth even city government. so, its fit from If this is plain- Amendment, relieve which would city remedy seek exclusion from the obligation case from its tiff escape taxes limits rather than from such of constructing of the cost proportion its escape by judicial decree. including sanitary sew- proportionate general fair share direct ers, because it’ receives merely no city, city long part as it taxes company is-cor- If therefrom. benefit merely spe- because receives direct every owner of position, then rect in this benefit therefrom. cial parcel or tract every single lot, escape may likewise in a similar situation necessary, "If a benefit is indirect bene- improvement. taxation for such sufficient sustain legality fits are city taxes, the" Fourteenth general fairly equitably where only cases successfully invoked has all the Amendment been levied improve- city. disputed. a public seriously That As against an assessment stated, allegations complaint improvement author- where the benefit are where dis- will receive no other benefit statute, ized valid improvement an im- construct not authorized to from this tricts were "astatement of special fact, provement for benefit of the an ultimate but conclusion ' pleader. number if it district. But is to treated state- as a fact, judicial cases the federal have held we take such courts notice that arbitrary, that where there was statement not unreason- such correct. take Courts judicial able or unwarranted action or notice of are common conduct in facts which assessments, levy knowledge proof inclusion of all men. It needs no district, some to us that the property within the such as inform construction áof wa- being terworks classes assessed or val- with the fire additional others, protection, improvement ued at different than rate health and sani- clearly tation, appeared only in- where makes thereof, possibly in the district re- has the benefit cluded could but also other improvement, erty, any ceive benefit from much more valuable be- than it was protection that then Fourteenth fore. construction of waterworks might be invoked. Amendment The dis- would add substantially as- situations .and tinction between such the sessed value of the benefited there- n one obvious, presented by. here is needs itself inures This benefit of company’s amplification. when further Cooley Taxation, 493; Wagoner 3 Evans, P. Cas. Kentucky, Wight Transit Co. v. Union S.Ct. Cir., Jury, Ann. Police 264 F. 705. Many bene- fixed. other indirect levies could just surely which will follow

fits enumerated. judicially noted controversy entire

The crux of this company required plaintiff forty-six this

pay per cent the costs

improvement. I if this doubt case upon to here were called im- per only five cent of the cost of

provement. Amend- But Fourteenth pro- arms not he all-enfolding

ment’s plaintiff

tectively wrapped around this forty-six

merely cent pays per because it improvement. of this It owns the cost

forty-six cent value all tax- per city,

able and therefore

should, process clause, pay due under the

forty-six im- per cent cost of the

provement. process is Due when satisfied applied yardstick proper-

the same

ty improvement. subject the cost of an arbitrary

would be and unwarranted plaintiff com- authorities assess the

pany’s property percentage less improvement

the cost under the ad- they pleaded,

mitted would in facts violating case stand due convicted brought similar action aggrieved, qualified taxpayer. only

I not fail to find dis-

cretion in the refusal trial court’s to enter temporary injunction, am of the judgment.

view correct entered a

NEW AMSTERDAM CASUALTY CO. LEDOUX et al.

No. 11756. Appeals,

Circuit Fifth Circuit.

Feb.

Case Details

Case Name: Morton Salt Co. v. City of South Hutchinson

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Feb 8, 1947

Citation: 159 F.2d 897

Docket Number: 3446

Court Abbreviation: 10th Cir.