Public Nat. Bank v. Keating

• Decision Date: 24 July 1928
• Parties: PUBLIC NAT. BANK OF NEW YORK v. KEATING, Receiver of Taxes, et al.
• Court: U.S. District Court — Southern District of New York

29 F.2d 621 (1928)

PUBLIC NAT. BANK OF NEW YORK v. KEATING, Receiver of Taxes, et al.

District Court, S. D. New York.

July 24, 1928.

Martin Saxe, of New York City, for plaintiff.

William H. King, of New York City, for defendants.

Before L. HAND and AUGUSTUS N. HAND, Circuit Judges, and BONDY, District Judge, sitting as a statutory court constituted under section 266 of the Judicial Code.

PER CURIAM.

Section 266 of the Judicial Code, so far as relevant, reads as follows: "No * * * injunction * * * restraining the enforcement * * * of any statute of a state by restraining the action of any officer of such state in the enforcement * * * of such statute, or * * * of an order made by an administrative board or commission acting under * * * the statutes of such state, shall be issued * * * upon the ground of the unconstitutionality of such statute" except by a court of three judges. It is apparent that three judges are necessary only when the suit is to restrain an "officer of such state" who proposes to enforce a statute or the order of an administrative board.

The receiver of the city of New York and its city collector are not officers of the state, except in so far as, like all other public officers, they indirectly derive their powers from the Legislature. They are both appointed by the comptroller of the city, himself an officer of the city. They have no duties, except in respect of collecting the taxes levied by the city's assessing officers. Unless all municipal officials are within the class mentioned in the section, they are not.

Until the decision of the Supreme Court in Ex parte Collins, 48 S. Ct. 585, 72 L. Ed. ___, June 4, 1928, it was open to some doubt what was the proper meaning of the phrase. There had been some cases in which the defendants were local municipal officers and the merits had been considered; they are cited in Ex parte Collins, with the comment that in none had the point been considered. Conversely, in other cases the cause had been disposed of by a single judge. We think that Ex parte Collins has settled the question. It is quite true that in that case the constitutionality of the statute was involved only through a municipal resolution, which determined that a local improvement should be made, and it was held that the suit was one to enjoin the resolution itself, though the sole complaint was as to the procedure provided in the statute. Even if that were taken as the entire scope of the decision, the assessment for taxes by a board of the city tax assessors seems to us to be an "order of a city board," as that phrase was used. Upon this point the court cited with approval City of Dallas v. Dallas Telephone Co., 272 F. 410 (C. C. A. 5), a case which held that a court of three judges was not necessary to review the validity of the order of a city board of commissioners fixing telephone rates within the city. It appears to us that the assessment of a board of tax commissioners must be treated as of the same kind.

However, the scope of the decision is not to be so limited; it also held that "local officers" were not "officers of such state," when "the suit...