Wilson v. City of Port Lavaca, Texas

• Decision Date: 23 January 1968
• Docket Number: Civ. A. No. 67-V-7.
• Citation: 285 F. Supp. 85
• Parties: Willett WILSON, Plaintiff, v. CITY OF PORT LAVACA, TEXAS, and K. A. Wallace and His Successors in his Capacity as Mayor of Said City, Defendants.
• Court: U.S. District Court — Southern District of Texas

285 F. Supp. 85

Willett WILSON, Plaintiff, v. CITY OF PORT LAVACA, TEXAS, and K. A. Wallace and His Successors in his Capacity as Mayor of Said City, Defendants.

Civ. A. No. 67-V-7.

United States District Court S. D. Texas, Victoria Division.

January 23, 1968.

Willett Wilson, Houston, Tex., for plaintiff.

Cullen, Mallette, Maddin, Edward & Williams, H. F. Maddin, Victoria, Tex., for defendants.

Before BROWN, Circuit Judge, and CONNALLY and SINGLETON, District Judges.

CONNALLY, District Judge.

Plaintiff seeks injunctive and declaratory relief from this three-judge court. He is the owner of real property in the City of Port Lavaca, Texas, and has been in controversy with the City over his ad valorem taxes. As that dispute is vitally related to the issues presented here, at least some of the history thereof must be examined.

Plaintiff instituted suit in the District Court of Calhoun County, Texas, attacking his assessment and making the contention so often pressed in Texas that personal property generally is not assessed. He sought to make proof that the provisions of the Texas Constitution and statutes which provide for equal taxation had been violated by reason of the omission from the tax rolls of deposits in the various banks and savings and loan associations in the city. See, Art. VIII, Sec. 1, Constitution of Texas Vernon's St.; Vernon's Ann.Tex.Rev. Civ.Stat., art. 7145 (1925). The argument is, of course, that inclusion of these deposits on the tax rolls would have substantially reduced the taxes imposed on his real estate.

To make his proof, plaintiff sought to take the deposition of certain banking officials to secure a list of the depositors and the amount of each deposit. He was not permitted to pursue this course, however, by reason of the terms of Article 342-709 of the Texas Revised Civil Statutes, which provide:

"* * * neither shall any bank be required to disclose the amount deposited by any depositor to third parties except where (i) the depositor or owner of such deposit is a proper or necessary party to a proceeding in a court of competent jurisdiction in which event the records pertaining to the deposit of such depositor or owner shall be subject to disclosure or (ii) the bank itself is a proper or necessary party to a proceeding in a court of competent jurisdiction * * *."

Having lost his case in the trial court, an appeal was taken to the Court of Civil Appeals where he was also unsuccessful. Wilson v. City of Port Lavaca, 407 S.W.2d 325 (Tex.Civ.App.1966). The Texas Supreme Court denied writ of error; and no application for certiorari was made to the United States Supreme Court.

The plaintiff here seeks a declaratory judgment that Article 342-709 is unconstitutional as violative of the Fourteenth Amendment, and asks that the City be enjoined from invoking the provisions thereof. An injunction is also sought to restrain the City from enforcing its tax lien upon plaintiff's property "until a determination may be had on the merits of this cause." The complaint alleges, at least formally, federal question jurisdiction under Title 28 U.S.C. § 1331.

To invoke the provisions of Section 2281 of Title 28 U.S.C., requiring certain cases to be heard by a three-judge court, it must appear that the action is (1) for an injunction, (2) to restrain the enforcement, operation or execution of a state statute, (3) by restraining the action of an officer of the state in the enforcement or execution of such statute, (4) on the ground that the statute is unconstitutional. The injunctive relief which the plaintiff seeks is to restrain the defendant City and its Mayor from invoking the provisions of Article 342-709. However, neither of these parties enforces or executes such statute. Indeed. there is no party defendant who does. Clearly, plaintiff's claim is without the scope of the three-judge act.

The trouble with plaintiff's other request for injunctive relief—that the City be restrained from enforcing its tax lien —is that no attack is made upon the constitutionality of the state statute authorizing the enforcement of the liens. The only statute attacked, Article 342-709, relates solely to evidentiary matters and has nothing to do with the collection of ad valorem taxes. The claim is not, therefore, one which must be heard by a three-judge court.

Furthermore, whether this be a case for a three-judge court or not, the equitable relief which plaintiff seeks is not available to him. He has an adequate remedy at law in state court to prevent the collection of taxes not properly assessed; and if Article 342-709 proves to be an obstacle in the assertion of that remedy, its constitutionality can there be attacked without the necessity of an injunction.¹ City of Houston v. Standard-Triumph Motor Co., 347 F.2d...