Petition — Alnoa G. Corp. v. City of Houston

Supreme Court brief1978

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Bupreme Court, YJ a

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FILED. \

| FER 14 1978

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1977

ALNOA G. CORPORATION,

Petitioner,

US.

Crry or Houston, TEXaAs,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT

WILLIAM V. COUNTS OF

LANE, SAVAGE, Counts & WINN

3330 Republic National Bank Bldg.

Dallas, Texas 75201

Tel: (214) 741-3633

Attorney for Petitioner

———a~

INDEX

PAGE

III nis serch cnpatiendineniinaieiidniadiceananbentiie eeesenees 1

FATES TRIE BEL SERIO eee NTE MSE E EN ETE 2

EIT RIN HR NE AN SALI Te ETE 2

Constitutional and Legislative Provisions Involved ........ 4

Amendment XIV, Section 1, United States

ESA SS REIV EPS OM nA PAE ENA TST 4

ee I iis acs dacictnesicts daisies diehsdbibineiaammiiiiasadineddlueidilis 5

I III Wnciiisicedsihidicesaialadtbei bat ee emt ce, 5

ers TE Lisselltaslsistensnsacinieaitinnssdibioiiieaiadamsbdliisibiaacinctidlan sian 5

Art. 1105b, Revised Civil Statutes of Texas................ 5

City of Houston Ordinance No. 77-180...............0e00e08 10

Statement and Basis for Federal Jurisdic*ion in the

United States District Court ......ccccccccccccsssccsescsccsccocssses 12

SER ES RAEN EAN OB OE ENON 15

I ae ie ciacdiiia 15

SB U BA... BBGI fp BE ionic csiciciccccecssecescceceses 17

State Remedy is not “Plain, Speedy and

IIE itissis cucineninnbabidédisaaummenhsinducdiueisdiuseniieiiin 23

Petitioner has been Deprived of “Judicial Fair

gk ES aaa Le tone ee 27

II ices ciettesecetciebaieddaieassiied tla hcicache alcatel aaah ach 28

TABLE OF AUTHORITIES

PAGE

Cases

Bell v. Hood, 90 L. Ed. 939, 327 U.S. 678,

SAU: WOT icine ata hhaesia cael iceeciasiahited ctl 4

Chicago, B.& Q. R. Co. v. Illinois, 26 S. Ct. 341 at

page 351; 200 U.S. 561, 50 L. Ed. 596.....................0c000. 17

County of Allegheny v. Mashuda Co., 360 U.S. 185, 79S.

rs es I SE IEE csc ciccichsnnsesnnnceeennmpunientioes 16,17,21

Georgia Pacific Corporation v. County of Mendocino,

ee TI, TED snssisceisnintscsusiiiinhentiniigditiieniinniniibiedes 20

Georgia Railroad and Banking Co. v. Redwine, 342 U.S.

299, 96 L. Ed. 335, 72 S. Ct. 321 (1952) ..................... 20,26,27

Hargrove v. McKinney, 413 F.2d 320, 325-327 (5th Cir.

SII -hesilscidhsshcesbuidiehcndilemeadittaaic ineiceciabesisculeicabienddaaabeabaddadeadoes 19

Hillsborough Township v. Cromwell, 326 U.S. 620, 90 L.

& Ff ke S| Re eee 26

Louisville and Nashville Railroad Co. v. Atkins,

423 U.S. 802, 96S. Ct. 10, 46 L. Ed. 2d 24.............0.0... 17, 20

Murchison, In re, 349 U.S. 133, 99 L. Ed. 942,

SC 15

Spector v. O'Connor, 340 U.S. 602, 95 L. Ed. 573, 71 S.

BEBE IRE iene ne CRN Oe 26

Tramell v. Schrader, 505 F.2d 1310 (5th Cir. 1975) ......... 21

Tully v. Griffin, 97 S. Ct. 219, 50 L.Ed. 2d 227................ 27

Village of Norwood v. Baker, 19 S. Ct. 187, 172 U.S. 269

AER SSIES SEREMET ERR nccoe RETA PA nee ee aan Tt ne TN 16, 17, 21

Ward v. Monroeville, 409 U.S. 57,

ie F |) oe | Ree Cy ere ee 15

iii

TABLE OF AUTHORITIES (Continued )

Constitutional Provisions

Amendment XIV, Section 1,

ren EIGER. rncosenseesensonsensonsedene

28 U.S.C. ST ioteiinlenetinliidaieihipcsmapniinneiapieennibcnbtanhinendnnbiien

Ay MITE anictdindnnceceaniitiseidnieedsenioisimtininiennteceneiieess

Is II csha'ccaciicssipiemtncinimicentacinnditinnniebiniiiibiniapenninenintieit

Art. 1105b, Revised Civil Statutes of Texas ...................

City of Houston Ordinance No. 77-180 ...........ccseeeeeseeeeee

Other Authorities

Reavley, Substantial Evidence and Insubstantial

Review in Texas, 23 S.W.L.J. 239 (1969) ...........cceeeeee ees

PAGE

In THE

Supreme Court of the Gnited States

OcTOBER TERM, 1977

ALNOA G. CORPORATION,

Petitioner,

US.

City or Houston, Texas,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT

ALNoA G. CorPoRATION petitions for a Writ of Certiorari to

review a judgment of the Court of Appeals for the Fifth

Circuit entered on November 23, 1977.

OPINIONS BELOW

The Court of Appeals transferred the case to its Summary

Docket and did not hear oral argument. The only opinion of

the Court of Appeals is a per curiam Order of Affirmance of

the District Court with the Memorandum Opinion of the

District Judge appended. The per curiam Order is reported in

563 F.2d 769 and is appended hereto (Appendix A, infra, ).

JURISDICTION

(i) The judgment of the Court of Appeals sought to be

reviewed is dated November 23, 1977.

(ii) A Motion for Rehearing was denied on December 22,

1977.

(iii) Jurisdiction of this Court arises under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

Questions I and Ii

The Complaint seeks for Plaintiff, a nonresident

corporation, relief from a personal liability to the City of

Houston, which has also become fixed as a lien on

Petitioner’s land, totaling in amount in excess of $450,000.00

imposed on it by the governing body of the City of Houston.

The liability is a one time lump sum exaction. It is individual

and particularized as to the Plaintiff, colorably founded on

an alleged increase in value of land owned by the Plaintiff by

reason of the conversion of a contiguous public street from a

paved two-lane highway to-a four-lane esplanaded thor-

oughfare. It was imposed by the governing body of the

Defendant City in a proceeding individual and particular as

to the Plaintiff having as its purpose the fixing of the liability

and the amount thereof. The contested Order is not one

which would be classifiable as what is sometimes known as an

administrative order of general application substantially

legislative in character; it is an order having all the

characteristics of, and in fact greater effect than, a judgment

of a court of general jurisdiction which judgment has become

a judgment lien against a judgment debtor’s property. The

state statute under which the governing body of the City

colorably acted provides for a right of appeal therefrom “‘by

instituting suit in any court having jurisdiction within fifteen

days from the time such assessment is levied.”’ Plaintiff seeks

relief from the liability based on unconstitutionality under

the Fourteenth Amendment of the state statute under which

the Defendant colorably acted, unconstitutionality under the

Fourteenth Amendment of the action of the governing body

of the City which is contested, unconstitutionality under the

Fourteenth Amendment of the particular processes and

procedures followed by the City’s governing body at the

particular “hearing” at the conclusion of which the contested

Order against Plaintiff was entered, and also challenges the

factual determinations as having not only been unproved in

any fact finding body but also as having been disproved by

Plaintiff and as being patently and manifestly totally

arbitrary and lacking none of the characteristics of legal and

factual gress capriciousness. (The complaint is reproduced

infra, Appendix B, pp. B-1 through B-27).

Question I: Is the federal court deprived of jurisdiction of

this claim for relief by operation of 28 U.S.C. 1341, as has

been held by the courts below whether or not there may be

had in the courts of the State of Texas a “plain, speedy and

efficient remedy?”

Question II: Is the remedy which may be had in the courts

of the State of Texas ‘“‘plain, speedy, and efficient?”

Question III

The Defendant did not answer the Complaint. The District

Judge apparently took no heed that the Complaint had not

been answered and impliedly by his Order overruled

Plaintiff's motion to require that the Complaint be answered.

The Defendant ignored interrogatories timely filed by

Plaintiff under Rule 33, FRCP, and the District Judge

impliedly overruled Plaintiff's motion under Rule 37(a),

FRCP, to require the service of answers to the interrogatories.

Plaintiff was not permitted an evidentiary hearing; in fact,

Plaintiff was not accorded any kind of oral argument or any

form of personal appearance before the District Judge.

App. C-6. The Court of Appeals transferred the case to its

Summary Docket to be decided without oral argument under

its Rule 18. Thus, Plaintiff has been denied opportunity to

confront any Judge in the Federal court system with its

arguments and contentions. Moreover, The Court of Appeals

has declined to disturb a District Court judgment which

holds the Court to be without jurisdiction because of 28

U.S.C. 1341 but also sustains a Rule 12(b)(6), FRCP, motion

to dismiss for failure to state a claim for relief. (See Bell v.

Hood, 90 L. Ed. 939, 327 U.S. 678 66 S.Ct. 773 (1946)).

Question III: As a result of the cumulative effect of the

summary procedures occurring in both courts below, has the

departure from traditional, accepted, usual and customary,

and commonly accepted normal judicial procedures been

such as to deprive Plaintiff of ‘‘judicial fair play”, reasonable

and fair opportunity to present its jurisdictional contentions,

in fact, of access in a real and meaningful sense to the United

States Courts?

CONSTITUTIONAL AND LEGISLATIVE

PROVISIONS

(i) The United States Constitution, amendment XIV,

section 1, provides:

‘‘No state shall make or entorce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.”

(ii) 28 U.S.C. 1332 provides:

“(a) The District Court shall have original jurisdiction

of all civil actions where the matter in controversy

exceeds the sum or value of $10,000, exclusive of interest

and costs, and is between — (1) citizens of different

states *** (c) for purposes of this section *** a

corporation shall be deemed a citizen of any state by

which it has been incorporated and of the state where it

has its principal place of business ***”

(iii) 28 U.S.C. 1331 provides:

(a) The District Court shall have original jurisdiction

of all civil actions wherein the matter in controversy

exceeds the sum of value of $10,000, *** and arises under

the Constitution, laws *** of the United States ***”’

(iv) 28 U.S.C. 1341 provides:

“The District Court shall not enjoin, suspend or restrain

the assessment, levy or collection of any tax under state

law where a plain, speedy and efficient remedy may be

had in the courts of such state.”

(v) Art. 1105b (Rev. Civ. Stats. of Texas, Art. 1105b)

provides as follows:

“Section 1. (a) That cities, *** shall have the power

to cause to be improved any highway within their

limits ***

**(b) ***

**(c) ** *

“Section 2. ***

“Section 3. That the governing body of any city shall

have the power to determine the necessity for, and to

order the improvements *** and to contract for the

construction *** in the name of the city, and to provide

for the payment of the cost *** by the city, or partly by

the city and partly by assessments as hereinafter

provided.

“Section 4. That the cost of such improvements may be

wholly paid by the city, or partly by the city and partly

by property abutting upon the highway or portion

thereof ordered to be improved, and the owners of such

property, but if any part of the cost is to be paid by such

abutting property and the owners, then before any such

improvements are actually constructed, and before any

hearing herein provided for is held, the governing body

shall prepare, or cause to be prepared, an estimate of the

cost *** and in no event shall more than all the cost of

constructing, repairing and realigning curbs, gutters and

sidewalks, and nine-tenths of the remaining cost *** be

assessed ***.

“Section 5. ***

“Section 6. Subject to the terms hereof, the governing

body *** shall have the power by ordinance to assess ***

and to provide the time, terms, and conditions of

payment and defaults *** and to prescribe the rate of

interest ***. Any assessments *** shall be a first and

—

prior lien thereon from the date improvements are

ordered, and shall be a personal liability *** against the

true owners ***.

“Such assessments *** shall be a first and prior lien on

the property assessed, superior to all other liens and

claims except State, county, school district, and city ad

valorem taxes, and shall be a personal liability and

charge against said owners of the property assessed.

“Section 7. The part of the cost *** which may be

assessed *** shall be apportioned among the parcels of

abutting property *** in accordance with the Front Foot

Plan or Rule provided that if the application of this rule

would, in the opinion of the Governing Body, in

particular cases, result in injustice, it shall be the duty

of said Body to apportion and assess *** as it may deem

just and equitable, having in view the special benefit in

enhanced value to be received by such parcels and the

owners thereof, the equities of such owners, and the

adjustment of such apportionment so as to produce a

substantial equality of benefits received and burdens

imposed.

“Section 8. *** The lien created against any property

and the personal liability of the owners *** may be

enforced by suit in any court having jurisdiction, or by

sale *** in the same manner as may be provided by law

*** for sale of property for ad valorem city taxes.

“Section 9. No assessment *** shall be made until after

notice and opportunity for hearing as herein provided,

and no assessment shall be made against any abutting

property *** in excess of the special benefits of such

property, and its owners in the enhanced value thereof

by means of such improvements as determined at such

hearing. Said notice shall be by advertisement *** and,

additional written notice *** by depositing in the United

States mail ***. If any such notice shall describe in

general terms the nature of the improvements *** the

estimated amount or amounts per front foot proposed to

be assessed *** and shall state the estimated cost ***

and shall state the time and place at which such hearing

shall be held, then such notice shall be sufficient, valid

and binding ***. Such hearing shall be before the

governing body of such city and all owning any such

abutting property *** shall have the right, at such

hearing, to be heard on any matter as to which a hearing

is a constitutional prerequisite to the validity of any

assessment authorized by this Act, and to contest the

amounts of the proposed assessments, the lien and

liability thereof, the special benefits to the abutting

property and owners thereof by means of the

improvements for which assessments are to be levied,

the accuracy, sufficiency, regularity and validity of the

proceedings and contract in connection with such

improvements and proposed assessments, and the

governing body shall have power *** to determine the

amounts of assessments and all other matters necessary,

and by ordinance to close such hearing and levy such

assessments, but no part of any assessment shall be

made to mature prior to acceptance by the city of the

improvements for which assessment is levied.

‘““Anyone owning *** any property assessed, *** who

shall desire to contest any such assessment on account of

the amount thereof, or any inaccuracy, irregularity,

invalidity, or insufficiency of the proceedings or contract

with reference thereto, or with reference to such

improvements, or on account of any matter or thing not

in the discretion of the governing body, shail have the

right to appeal therefrom and from such hearing by

instituting suit for that purpose in any court having

jurisdiction, within fifteen (15) days from the time such

assessment is levied, and anyone who shall fail to

institute such suit within such time shall be held to have

waived every matter which might have been taken

advantage of at such hearing, and shall be barred and

estopped from in any manner contesting or questioning

such assessment, the amount, accuracy, validity,

regularity, and sufficiency thereof, and of the

proceedings and contract with reference thereto and

with reference to such improvement for or on account of

any matter whatsoever. And the only defense to any

such assessment in any suit to enforce the same shall be

that the notice of hearing was not mailed as required or

was not published or did not contain the substance of

one or more of the requisites therefor herein prescribed,

or that the assessments exceed the amount of the

estimate, and no words or acts of any officer or employee

of the city, or member of any governing body shown in

its written proceedings and records shall in any way

affect the force and effect of the provisions of this Act.

“Section 10. ***

“Section 11. ***

“Section 12. Said governing body shall have the power

to carry out all the terms and provisions of this Act ***

either by resolution, motion, order or ordinance, except

where ordinance is specifically prescribed, and such

governing body shall have the power to adopt *** any

and all rules or regulations appropriate to the exercise of

such powers, the method and manner of ordering and

holding such hearings, and the giving of such notices

thereof.

‘Section 13. In case any assessment shall for any reason

whatsoever be heid *** to be invalid or unenforceable,

then the governing body *** is empowered *** and at

any time to meke and levy reassessments after notice

and hearing as nearly as possible in the manner herein

provided for original assessments, and subject to the

provisions hereof with reference to special benefits. ***

“Section 14. Anyone owning *** any property ***

against which such reassessment is levied shall have the

right of appeal as herein provided in connection with

original assessment, and in the event of failure to appeal

within fifteen (15) days from the date of such

reassessment, the provisions hereinabove made with

reference to waiver, bar, estoppel, and defense shall

apply to such reassessment.”

(vi) The record of ordinances of the City of Houston reflect

Ordinance No. 77-180 to have been adopted by the

Defendant City on the 26th day of January, 1977. The said

ordinance (see Appendix comprising a part of the Record on

appeal in the Court below, pp. 55-76) provides in the material

part as follows:

“Section 1. After due notice, in the manner required by

law, a hearing on benefits was convened and held before

the City Council at 3:00 o’clock p.m. on the fifth day of

January, 1977, with respect to the permanent

improvement of portions of Almeda-Genoa Road and

Monroe Road as initiated by Ordinance No. 76-570,

passed April 7, 1976.

“At such hearing full evidence was received as to all |

pertinent matters and all protests and objections were

heard and carefully considered.

“Section 2. The City Council finds and declares that all

proceedings with reference to the making of said

improvements as herein stated has been duly and

regularly had in compliance with the law and the

Charter of the City of Houston, *** and all prerequisites

to the fixing of the assessment liens against the

properties hereinafter listed and the personal liability of

the respective owners thereof, whether named or not,

have been in all things performed and complied with;

and said City Council further finds and declares that all

persons interested have been given a full and fair

hearing ***.

‘Section 3. In pursuance of the ordinances and

resolutions heretofore adopted and passed by the City

Council of the City of Houston relating to said

improvements *** and by virtue of the powers conferred

and contained in *** art. 1105b of Vernon’s Annotated

Civil Statutes of Texas *** there shall be and there are

hereby levied and assessed against the properties

abutting on said portions of said highway or highways

*** the hereinafter stated amounts. The description of

said properties and the apparent owners thereof,

respectively, and the several amounts so assessed are:

Property Vame of Block Property Total

Owner iddition Lot No. No. Frontage issessment

-**

13. Thelma P. Skyscraper 25 46 61.03 $ 3,706.35

& Joan M. Shadows 61.03’ at

Head Sec. 3 $60.73

“**

Property Name of Block Property Total

Owner iddition Lot No. No. Frontage issessment

109. Thelma P. Houston ll 43 128.62 $ 7,811.09

& Joan M. Skyscraper 128.62’ at

Head Shadows $60.73

Sec. 2

113. Thelma P. Houston ll 43 230.00 $13,967.90

& Joan M. Skyscraper 221.03’ at

Head Shadows $60.73

Sec. 2

* ok *

(Item 109 is the amount of assessment of Lot 11, Block 43 for

frontage and 113 is the side assessment of this same lot

making a total $21,778.99. There are approximately 82 items

fixing liability and liens against Petitioner in the manner as

illustrated.)

“Section 4. Said several amounts, together with

interest, expense of collection, and reasonable attorney’s

fee, if incurred, shall be and the same are hereby

declared to be a first and prior lien on and against said

respective abutting properties, and said amounts so

assessed, together with said other items, shall be and the

same are hereby declared to be personal liabilities and

charges against the true owners of said properties,

respectively, whether named or not, all as provided in

and by said art. 1105b of Vernon’s Annotated Civil

Statutes of Texas ***.”

STATEMENT AND BASIS

FOR FEDERAL JURISDICTION

IN THE UNITED STATES DISTRICT COURT

Plaintiff alleged itself to be a corporation organized under

the laws of the State of Delaware wherein is located its

principal office and place of business and Defendant to be a

municipal corporation with the seat of its government in

Harris County, Texas, and that the United States District

Court had original jurisdiction under Title 28, Section 1332 of

the United States Code, there being a controversy between

citizens of different states and the matter in controversy

exceeding, exclusive of interest and costs, the sum or value of

$10,000.00, and also under Title 28, Section 1331 of the

United States Code, there being presented substantial

questions arising under the constitution and laws of the

United States and Plaintiff also invoked the pendent and

incidental jurisdiction of the United States District Court.

The claim for relief was dismissed by the District Court for

want of jurisdiction relying on 28 U.S.C. 1341. The

Complaint is admittedly lengthy, but the allegations are

specific, detailed, precise and non-conclusory and can be

answered readily as “‘denied”’ or “admitted”’.

Notice directed to Plaintiff's predecessor owner of the City

Council hearing reached Plaintiff and no objections to the

notice or adequacy thereof were made. The Ordinance recites

a hearing was held but the Complaint alleges that no official

record of the hearing was kept or maintained. The Complaint

also alleges occurrences and procedures connected with and

“constituting” the hearing such as would if established show

that in a legal sense there was no hearing notwithstanding the

recitation of the Ordinance. As stated above, Plaintiff was

denied its rights to conduct discovery under Rule 33, FRCP,

was denied its entitlement to have answered the Complaint,

was denied an evidentiary hearing, and was denied any

appearance before the United States District Judge to

present its contentions, including it was denied any oral

argument. The District Judge thus struck with only the

complaint before him.

STATEMENT

The controversy on the merits and in an ultimate sense

involves whether Petitioner is to be required to pay to the

City of Houston, Texas any sum of money to reimburse the

City for costs incurred and to be incurred by it in

implementing its decision opposed by Petitioner to convert

an existing paved public street in Houston, Texas contiguous

to Petitioner’s land from a paved two-lane street to a four-

lane esplanaded City thoroughfare street, and if so, how

much. Petitioner does not necessarily concede but it does not

challenge a substantive legal principle that if the land owned

by it has been increased in value, it can be required to pay to

the City the amount of this increase notwithstanding the

benefit conferred on it for which it is required to pay is a

benefit conferred without its consent provided the imposition

is by means and procedures which would pass muster under

the United States Constitution. Petitioner does challenge the

constitutionality under the United States Constitution of the

procedures permitted by the state authorizing statute to

determine the liability and the amount thereof on numerous

specific and detailed grounds (both because of uncon-

stitutional procedures directed or permitted as well as

unconstitutional procedures not prevented), does challenge

the liability imposed on it here also because of gross abuses

and gross violations of due process which occurred in the

particular proceeding to which Petitioner has been subjected

and which it alleges specifically and in detail, and generally

seeks relief on any grounds and on all grounds whereby it

would be relieved of liability to pay any amount, in excess of

the amount, determined by constitutional means, by which

its land has been increased in value and thus it has had a

benefit conferred upon it.

Petitioner's specific allegations as to deprivations of due

process are numerous and detailed and range (by way cf

illustration) from its contention that the governing body of

the City could not be a constitutional tribunal to decide the

fact issues (see Ward v. Monroeville, 409 U.S. 57, 34 L. Ed.2d

267, 93 S. Ct. 80 (1972), and In re Murchison, 349 U.S. 133, 99

L. Ed. 942, 75 S. Ct. 623 (1955) to its contention that of the

six members of the City’s nine-member governing body who

voted the liabilities against Petitioner at a council meeting

held after the so-called hearing and after the so-called

hearing had been closed two had not been present at the so-

called hearing and one of the remaining four who had been

present told the others without being challenged that they

were voting to assess $1,300.00 per lot whereas the minimum

amount for any one lot was $3,706.35 and the range upward

from there was to $21,778.99 for Petitioner’s Lot 11, Block 43.

The precise present status of the controversy is whether,

notwithstanding the jurisdictional provisions of 28 U.S.C.

1331 and 28 U.S.C. 1332, the federal courts do not have

jurisdiction of the controversy because of 28 U.S.C. 1341.

REASONS FOR GRANTING WRIT

Introductory Summary

1. Important and wholly unsettled questions of federal law

and of federal court jurisdiction requiring interpretation of

federal statutes are presented. These questions have also

been decided incorrectly in the courts below.

2. The challenged state governmentally imposed liability

is not a governmental liability covered or intended to be

covered by 28 U.S.C. 1341 as the courts below have

erroneously held. Any policy to interpret 28 U.S.C. 1341 to

extend to liabilities the same or of the nature of the

challenged liability is uniquely one for adoption or rejection

by the United States Supreme Court.

3. The United States Supreme Court has never considered

an issue of coverage of 28 U.S.C. 1341 (what is a “‘tax under

state law’’?) other than in the context of coverage as deriving

from whether the state court remedy is a qualified one, nor

are there analogous precedents in the United States Supreme

Court which are very directly in point.

4. The treatment by the courts below of the challenged

liability as a “tax” is in conflict with the judicial principles

recognized and stated in cases like Village of Norwood v.

Baker, infra, declaring the substantive nature constitu-

tionally supportable of a liability fixed against an individual

tract of land based on the increasing of the value of the land

by a “public improvement.”’

5. The only state court remedy is not a qualified remedy

and the United States Supreme Court has never considered a

state court remedy the same as or similar to the only Texas

state remedy available to Petitioner as to whether it meets

the tests of 28 U.S.C. 1341 as being plain, speedy and

efficient.

6. The decision of the courts below is in conflict with the

principles of County of Allegheny v. Mashuda, infra,

upholding federal jurisdiction over state property

condemnations. A complaint making specific allegations to

be taken as true which on their face reflect factual

substantiality that a liability grossly in excess of the value of

any benefit received has been imposed alleges a “taking of

property” and the significance of said allegations where

jurisdiction is questioned under 28 U.S.C. 1341 is a matter

which warrants consideration by the United States Supreme

Court. MR. JUSTICE HOLMES: “I suppose it to be plain, as

my brother Brewer says, that, if an expense is thrown upon

the railroad unlawfully, its property is taken for public use

without due compensation.” Chicago, B. & Q. R. Co. v.

Illinois, 26S. Ct. 341 at page 351; 200 U.S. 561, 50 L. Ed. 596.

The questions presented for review involve important

questions of federal law and jurisdiction of federal courts

which have not been settled but should be settled and can

only be settled by the United States Supreme Court. They

also involve a decision in the Courts below of a federal

question in conflict with judicial principles inherent in the

decisions of Village of Norwood v. Baker, 19 S.Ct. 187, 172

U.S. 269 (1898), and County of Allegheny v. Mashuda, 360

U.S. 185, 79 S. Ct. 1060, 3 L. Ed. 2d 1163. The decisions

below are also believed and considered to be in conflict with

Louisville v. Nashville Railway Co., 423 U.S. 802 46 L. Ed.2d

24, 96 S. Ct. 10, which was an affirmance on direct appeal

from the District Court, Middle District of Tennessee.

A. The courts below have erroneously applied the

provisions of 28 U.S.C. 1341 to the controversy. The

jurisdiction depriving effect of 28 U.S.C. 1341 is limited.

First, it is limited to ‘taxes under state law.’’ Even without

reference to the limiting effect of the requirement of an

adequate state remedy, it is limited to actions to enjoin,

suspend or restrain the assessment, levy or collection of any

tax under state law.

That the governmental exaction involved in this

controversy is not a “tax under state law” or a “‘tax’”’ at all

seems apparent; however, it did not seem apparent to the

courts below. Its substantive and procedural elements are

inconsistent with the substantive and procedural elements

commonly associated with a “‘tax’’. It is a one-time exaction.

A prerequisite for its initial imposition is a hearing. A

prerequisite for its attaining finality as a liability is a

disposition adverse to the obligor by a court of a contest of the

obligation as initially imposed. It is an obligation

individually determined and imposed and based on factual

determinations of whether there has been or will be a benefit

conferred on the particular person or entity affected, and if

so, how much that benefit should be valued. Generally, the

procedures and processes contemplated for its imposition are

judicial or quasi-judicial proceedings rather than legislative-

type proceedings. It is an exaction for a particular purpose, to

reimburse the City for costs incurred and to be incurred by it

in a particular street improvement project. In the enabling

statute, the Legislature has recognized as a further condition

of the taking effect of the ‘iability that the individual

involved is entitled to some form of judicial review “in any

court having jurisdiction’’.

Liabilities arising under 1105b have been held by the

highest court of the State of Texas not to be “‘taxes’’. This

was recognized but considered irrelevant by the courts below.

There would appear to be no valid policy considerations

which would call for a federal court to treat for purposes of 28

U.S.C. 1341 the liability 2s a tax when the state itself does

not treat it as a tax. Moreover, 28 U.S.C. 1341 states an

applicability to a “tax under state law’. Certainly the

Congress was referring to liabilities which under state law

were ‘‘taxes.”’ The state holding that the liability is not a tax

carries with it certain substantive and procedural attributes

and therefore there would seem more to be called for a

uniform interpretation of 28 U.S.C. 1341 with state law rather

than an opposite interpretation. There is no evidence that the

State Legislature identified any state purpose and interest to

have the judicial review contemplated by 1105b conducted in

a state court, or in any particular state court, rather than in a

federal court.

Congressional history, although seemingly meager, more

points toward inapplicability than applicability of 28 U.S.C.

1341. See Hargrave v. McKinney, 413 F.2d 232, at 325-7, an

early case in the Court of Appeals for the Fifth Circuit not

often referred to by that court in recent years. The purposes

which have been suggested for the enactment of 28 U.S.C.

1341 are not served by holding it applicable to the instant

liability. The concern of Congress was with the opportunities

for foreign corporations to avoid or withhold payment of taxes

by resort to federal courts whereas resident corporations and

citizens were not accorded the same remedies in the state

courts. The enabling act here contemplates as a prerequisite

for finality at least the securing of a final judgment of a court

declining to set aside the determination of liability by the

governing body of the City. This remedy is granted equally to

residents and nonresidents. Thus there is inherent in the

process that the liability cannot be collected until a judg-

ment adverse to the landowner has become final against it.

Discrimination as to remedies between residents and

nonresidents is not possible. The liability of one landowner

under 1105b is entirely separate from all other landowners

since the issues as to whether he has a liability because his

particular tract of land is benefited, and if it is benefited, how

much, are separate and individual as to each tract of land

and each owner and involve individual determinations as to

each tract of land and as to each owner. It is relatively clear

that the Congress had in mind taxes having a wide general

application to taxpayers, or at least classes of taxpayers

constitutionally and rationally identified as to application of

a proposed tax. It also seems clear Congress was thinking of

“tax liabilities” imposed legislatively by a legislative body

proceeding legislatively, not liabilities imposed judicially or

quasi-judicially. Congress also made the point that the evil

sought to be cured was the ability of foreign corporations by

resort to federal courts to withhold from states and their

subdivisions taxes resulting in a disruption of state, city and

county finances unless the taxing entity chose to compromise

the liability in order to secure more timely payment. This

purpose is not applicable here not only because the enabling

statute contemplates that all affected landowners can

withhold until their liability is the subject of a final judgment

in a court but also because the exaction is one the collection

of which by the city is always at risk, at least to some extent,

until a final judgment refusing to set aside the exaction is

entered and in the meantime the city proceeds with this risk

present, presumably with funds contingently budgeted to pay

for the work out of general revenues.

Although it has been held that 28 U.S.C. 1341 is not to be

limited in its scope to pure complaints for injunctions or the

substantial equivalent thereof but extends to actions for

declaratory judgment to declare tax statutes invalid,

nevertheless it has been held that the statute does not extend

to suits for refund of taxes allegedly illegally assessed and

collected, a kind of case where essentialiy the same

considerations pointing to nonapplicability of 28 U.S.C. 1341

are present as are present in this case before the Court.

Louisville and Nashville Railway Co. v. Atkins, 423 U.S. 802

96 S. Ct. 10, 46 L. Ed.2d 24, noting ‘“‘appeal from the United

States District Court for the Middle District of Tennessee,

judgment affirmed”. See also Georgia Pacific Corp. v.

County of Mendocino, 515 F.2d 285 (9th Cir. 1974).

It is important to federal law and to the law generally that

the applicability of 28 U.S.C. 1341 to governmentally created

liabilities the same or similar to the liability here involved be

settled. In this connection, there are some matters which

attorneys and litigants come to consider settled by decisions

in the circuit courts because of the quality of the opinions

rendered by the court deciding the case. It would seem a

reasonable conclusion that the opinion of the Court of

Appeals for the Fifth Circuit in Tramell v. Schrader, 505 F.2d

1310 (1975), and its action in this case before the Court as

much invites additional efforts to invoke federal jurisdiction

in such cases as it has an operative effect to deter such efforts.

Consideration by the United States Supreme Court in any

context of citizen liabilities similar to the liability here

contested, have been limited and there is little law to be

pointed to as emanating from the United States Supreme

Court which sheds much light in at least a direct or specific

sense on the specific questions presented except cases like

Village of Norwood v. Baker, infra, and the Mashuda case,

infra.

No case has been found where this Court has considered, at

least by published opinions, the issue of what is a “‘tax under

state law’, the issue of to what state created liabilities 28

U.S.C. 1341 may extend other than what would indisputably

be a tax. On the issue of coverage (other than as deriving from

adequacy of the state court remedy) the Court has only

considered its application as affected by the parties before

the Court, the United States itself as the Plaintiff, an

instrumentality of the United States as plaintiff, or American

Indian tribes as plaintiffs, relying for jurisdiction on 28

U.S.C. 1362. It would seem important that this Court grant

the writ to permit a full consideration of the question as to

what liabilities the statute extends if it is to be extended to

liabilities other than tax liebilities. There appears to be no

reason to assume that a specific purpose of 28 U.S.C. 1341

was to limit federal courts in the exercise of their traditional

and primary responsibility for protecting federal

constitutional rights of United States citizens, particularly

from the acts of states and their instrumentalities. The

purpose of curtailing federal court intervention in state tax

matters was present but the curtailing of federal court

jurisdiction conferred by 28 U.S.C. 1331 was no more than an

incidental result of the statutory purpose. Thus if the

statutory purpose of curtailing federal court intervention in

state tax matters, is not defeated, there should be no policy

calling for a federal court to go further in foregoing the

performance of its primary and historical function of

protecting federal constitutional rights of citizens,

particularly from governmental abuses.

Moreover, the concept of the imposition of individualized

liabilities on citizens by state governmental agencies,

particularly municipalities, is an expanding one, brought on

by the search of cities for sources of additional revenue to

perform expanded and expanding functions many of which

would not until recently have been considered governmental.

There is increasing involvement particularly of cities in

private ventures, some ventures with private enterprise

which would be ‘‘common law partnerships.”’ There has been

expansion of the character of projects as to which it does not

seem to cities to be improper to undertake to require private

participation and contributions, nor improper to state

iegislators in passing implementing legislation, and

increasing necessary acknowledgment that councils and

other forms of governing bodies of cities may well be more

similar to boards of directors of large corporations than to

traditional legislative bodies. It is naive not to recognize that

governing bodies of municipalities, engaged in all manner of

enterprises, function from the perspective of the promotion of

the interest of the city as a corporate entity where there is a

conflict with a specific interest of a specific person or entity.

There is considerable evidence that liabilities of the nature of

the one before the Court were formerly principally limited to

“paving assessments” and when ‘“‘paving”’ was of relatively

“low cost” in comparison with land value. Now, construction

costs of streets consistent with strict municipally imposed

standards are much higher in relation to land values. Use of

the same procedures for effecting reimbursement from

landowners now extends to installation of water mains and

other water lines, sanitary sewers, curbs and gutters, and

storm sewers. Cities are now invested by enabling legislation

with the power to develop land within its limits which has not

seen development by private owners by installing, at the cost

of the owners of the land, water lines, sanitary sewer, storm

sewers, curbs, sidewalks, gutters and streets all meeting

current city specifications designed to eliminate or minimize

future repair and maintenance expense. (See Art. 1110C

Revised Civil Statutes of Texas first enacted in 1963 and

further expanded in scope in 1973 extending the same

procedures to water lines, storm sewers, and sanitary sewers).

If federal courts are not to have jurisdiction of suits

contesting such governmental exactions under either 28

U.S.C. 1331 or 28 U.S.C. 1332, then it should be important

that this be settled by the United States Supreme Court and

if federal courts are to have jurisdiction, then it is at least

equally important for this to be settled by this Court.

B. The holdings of the court below that a “plain, speedy,

and efficient remedy may be had in the *** (state courts)”’ is

erroneous. First, the statute provides:

‘Anyone *** owning *** any property assessed *** who

shall desire to contest any such assessment on account of

the amount thereof, or any inaccuracy, irregularity,

invalidity, or insufficiency of the proceedings or contract

with reference thereto *** or on account of any matter or

thing not in the discretion of the governing body, shall

have the right to appeal therefrom and from such

hearing by instituting suit for that purpose in any court

having jurisdiction within fifteen days from the time

such assessment is levied ***.”

Notwithstanding the seeming breadth of review evidenced

by the statute as intended, the Supreme Court of Texas has

held that the review is to be under the ““Texas Substantial

Evidence Rule”’ and is not only not to be a trial in the normal

sense of the trial of disputed fact issues but also is not even to

be an ‘‘on-the-record review.” The record of the proceedings

before the City’s governing body are thus not reviewed by ary

state court. There are no fact issues considered to be before

the state court. The court decides on the basis of evidence

heard by it, whether or not heard by the City’s governing

body, and as a decision of an issue of law whether to set aside

the council determinations or to refuse to set aside the

council determinations. There is no fact finding provided in

the state court proceeding; there is of course no jury and the

Judge has no jurisdiction to decide the facts. The test or tests

correctly to be used in making this ultimate decision have

perhaps never been clearly and plainly enunciated by the

Texas Supreme Court, but whatever the test or tests are it is

quite clear that the findings of the council will at least be

accorded the weight of the findings of a jury and if the

evidence before the court is such that the court could not

direct a verdict against the City if a jury were hearing the

facts heard by the Court, the court must enter a judgment for

the City. This process occurs without a review of the record of

the council hearing and without regard to what evidence, if

any, there was before the council on which it based its

findings and without regard to whether the landowner was

accorded due process at the council hearing, indeed, what

occurred related to the council decision whether it be alleged

to have occurred “‘during the hearing”’ or at some other time

is considered totally immaterial to the decision by the court.

Directed specifically to the jurisdictional aspect which is

now before the Court, the above procedure means that

Petitioner is provided no remedy in state courts where it can

present its contentions that at the hearing before the Council

when the fact issues were decided against it it was not

accorded but in fact was deprived of due process and equal

protection of the laws. Additionally, it is provided with no

remedy in the state courts whereby it can deprive the City of

and prevent the City from receiving and enjoying the benefits

of a hearing (and the benefit of the equivalent of a common

law nisi prius judgment) at which Petitioner was deprived of

and not accorded due process of law. The points as made may

appear to reflect such divergence from normal due process

requirements as to raise a skepticism of the correctness of the

statement thereof. But, the points made are assuredly

correct. For example, see Reavley (former Associate Justice,

Supreme Court of Texas), Substantial Evidence and

Insubstantial Review in Texas, 23 SWLJ 239 (1969).

Somewhat oddly, the District Judge below acknowledged

entitlement of petitioner to ‘‘due process’”’ at the council

hearing, but then ignored that the Texas remedy provides for

no review on the record whereby it can be determined if due

process was afforded.

The remedy is also not “plain, speedy and efficient”’

because the only judgment the court enters is a judgment

setting aside particular the council determination or a

judgment declining to set aside the determination, and if the

determination should be set aside, then, under the statute

the council may commence without limitation as to time or

number new assessment proceedings.

It is to be emphasized that the charges of Petitioner extend

to a charge patently possessing substantiality that its

property is being confiscated, that the addition, if there is

any addition, to the value of its land deriving from the street

project is grossly much less than that which it has been

determined it must pay, that it is subjected to a

governmental taking of its property, its land and its money,

without compensation. Yet, the State provides no remedy in

its courts for a judgment or court order which would prevent

this unconstitutional taking, which would even allow a limit

to be placed on how much Petitioner could be required to pay

based on judicial findings that any amount in excess would

be an “unconstitutional taking”’.

The District Judge stated a concession that a case might

arise whereby federal court jurisdiction might exist where it

could be shown that a council had proceeded in a new

assessment hearing ignoring the admonitions of a state court.

But how is it to be determined that the Council ignored the

admonitions of a state court if there is no review on the record

of the proceedings of the Council, and how is it to be

determined that the court admonitions were ignored if there

is to be no record plainly directed by the enabling statute to

be kept and made and in fact no record is kept or made.

One senses that there may have occurred after Spector v.

O'Conner, 340 U.S. 602, 95 L. Ed. 573, 71 S. Ct. 508 (1951);

Hillsborough Township v. Cromwell, 326 U.S. 620, 90 L. Ed.

358, 66 S. Ct. 445 (1946); and Georgia Railroad and Banking

Co. v. Redwine, 342 U.S. 299, 96 L. Ed. 335, 72 S. Ct. 321

(1952), the development of a policy of more strict application

of the ‘remedies test” of 28 U.S.C. 1341 to effectuate the

over-all policy of 28 U.S.C. 1341, at least a policy to find the

State remedy a qualifying remedy even though it be less that

the best remedy, something less than speedy, perhaps as

much obscure as plain, and perhaps less than could be

desired as to its efficiency. However, the only apparent basis

for this conclusion would seem to be denials of certiorari and

a seeming greater deferral by federal courts to state courts in

matters generally involving state law. On the question of the

remedy, the only case after the Redwine case in which this

Court appears to have spoken by decision and written opinion

is Tully v. Griffin, 97 S. Ct. 219, 50 L. Ed.2d 227, and as

indicated below this Court made certain there was a New

York remedy by which the taxpayer could present his federal

constitutional contentions without burdensome precondi-

tions and without prejudicing his position in respect of the

contest of the tax otherwise if his constitutional contentions

were not sustained.

This Court in Tully v. Griffin did not decide that Art. 78 of

the New York Civil Practice Law and Rules which required a

prepayment of the administratively determined tax before

resort to the State courts provided a plain, speedy and

efficient remedy in a case where the taxpayer was challenging

the constitutionality of the tax as applied to him but instead

looked for and found an adequate state remedy which would

result in a stay of the proceeding while the taxpayer litiga ed

in the New York courts his constitutional claims, the stay

assuring that . his constitutional claims were determined

adversely to him he would still be entitled to pursue his

administrative tax remedies through the completion of the

administrative process and from there into the New York

courts wherein as provided by Section 78 he could “‘challenge

the amount of the tax due.”

C. In respect of Question III, page 3, infra, it is Petitioner’s

sincerely held belief that the courts below have so far

departed from the accepted and usual course of conduct of

judicial proceedings as to call for this Court to exercise its

power of supervision provided for in such cases as

contemplated by the applicable clause of this Court’s

Rule 19. Petitioner does not contend that any one summary

procedure or any matter of which complaint is made standing

alone denied Petitioner the rudiments of judicial fair play

long known to our law but the cumulation thereof has had

this effect, has had the effect of a total denial of access in a

meaningful sense of the term to a United States Court.

PRAYER

For the foregoing reasons, a writ of certiorari should issue

to review the judgment of the United States Court of Appeals

for the Fifth Circuit.

Respectfully submitted,

/s/ WILLIAM V. Counts

WiiuiaM V. Counts of

LANE, SAVAGE, Counts & WINN

3330 Republic National Bank Bldg.

Dallas, Texas 75201

Tel: (214) 741-3633

Attorney for Petitioner

CERTIFICATE OF SERVICE

I, William V. Counts, attorney for Petitioner Alnoa G.

Corporation and a member of the Bar of the Supreme Court

of the United States, hereby certify that ee 799 4 , 1978,

I served three copies of the foregoing petition for writ of

certiorari on the respondent herein by mailing the same,

postage prepaid, addressed to Mr. Robert J. Collins, Senior

Assistant City Attorney and Mr. Charles Williams, Assistant

City Attorney, City of Houston, City Hall of the City of

Houston, 900 Brazos Street, Houston, Texas 77001. I further

certify that all parties required to be served have been served.

WiLuiaM V. COUNTS OF

LANE, SAVAGE, Counts & WyNN

3330 Republic National Bank Bidg.

Dallas, Texas 75201

Attorney for Petitioner

APPENDICES

A-1

APPENDIX A

ALNOA G. CORPORATION,

Delaware Corporation,

Plaintiff-Appellant,

Us.

CITY OF HOUSTON, TEXAS,

Defendant-Appellee

No. 77-2279

Summary Calendar

UNITED STATES COURT OF APPEALS,

FirtH Circuit

Nov. 23, 1977.

A-2

Before GOLDBERG, CLARK and FAY, Circuit Judges.

PER CURIAM:

The judgment below is affirmed on the basis of the district

court’s memorandum and order of dismissal annexed.

AFFIRMED.

APPENDIX

ALNOA G. CORPORATION

(A Delaware Corporation).

Plaintiff,

CITY OF HOUSTON, TEXAS,

Defendant.

Civil Action No. H-77-218

In THe Unitrep States District Court

For THE SOUTHERN District Or TExas

Houston DIvIsiIONn

MEMORANDUM AND ORDER

I. STATEMENT OF FACTS

Plaintiff has filed suit in this Court asserting jurisdiction

on the basis of diversity of citizenship, 28 U.S.C. §1332, and

the existence of a federal question, 28 U.S.C. §1331. The

defendant City in accordance with its powers under Article

1105b, Tex. Rev. Civ. Stat. Ann., has levied street paving

A-3

assessments against certain properties owned by plaintiff

within the City of Houston. Plaintiff contends that the

amount of the assessments exceeds the amount by which its

properties will be enhanced by the street improvements, and

that the assessments are arbitrary and capricious, depriving

it of due process. Plaintiff also points to aspects of its hearing

before the City Council + aich it says have deprived it of due

process.

Il. DEFENDANT’S MOTION TO DISMISS

A. 28 U.S.C. $1341

Defendant has filed a motion to dismiss for lack of

jurisdiction over the subject matter and for failure to state a

claim upon which relief can be granted. A motion conference

held before the United States Magistrate on May 9, 1977, has

resulted in a recommendation by the Magistrate that the

case be dismissed.

Defendant alleges that 28 U.S.C. §1341 bars this Court

from taking jurisdiction of plaintiff's cause. Title 28, United

States Code, Section 1341 provides:

“The district courts shall not enjoin, suspend, or

restrain the assessment, levy or collection of any tax

under State law where a pnlain, speedy and efficient

remedy may be had in the courts of such State.”

B. Scope of the Term “Tax”

[1] An initial question that presents itself here is whether

the term “‘tax’”’ as used in 28 U.S.C. § 1341 includes a special

assessment for street paving. Despite plaintiff's vigorous

arguments that such paving assessments are not covered by

the statute, the law in this Circuit is firmly to the contrary.

A-4

The Fifth Circuit Court of Appeals held in Tramel v.

Schrader, 505 F.2d 1310 (5th Cir. 1975) that special street

improvement assessments constituted a ‘‘tax’’ within the

purview of the tax injunction statute (28 U.S.C. § 1341), thus

requiring dismissal of suit by landowners to enjoin collection

of such assessments by city officials.

The Tramel opinion does assume, as plaintiff points out,

that the Texas law does not provide for a pre-assessment

hearing. This would seem to be incorrect, inasmuch as

Article 1105b, Tex. Rev. Civ. Stat. Ann., does in Section 9

(Supp. 1976) specifically provide that the amount of any

assessments under Article 1105b must be determined at a

hearing held by and before the governing body of the city,

however, any inaccuracy on this point does not affect the

validity of the Tramel holding on the point presently under

discussion, i.e., whether a special street improvement

assessment constitutes a “‘tax’’ for purposes of section 1341.

This Court holds in consonance with Tramel, supra, that the

special street improvement assessments of which plaintiff

complains are taxes within the purview of 28 U.S.C. § 1341.

C. Application of Section 1341

Having determined that the assessment here contested

falls within the scope of section 1341, the Court next

examines the standard of applicability of section 1341.

The test for applying section 1341 was succinctly set forth

in United States Steel Corp. v. Multistate Tax Commission,

367 F.Supp. 107, 115 (S.D.N.Y.1973). The court there said:

“In determining whether to exercise jurisdiction in a

particular case, the Court must carefully weigh two

countervailing considerations set forth by the statute:

(1) a long standing policy of non-interference by federal

—

A-5

courts in state tax matters; and (2) fairness to plaintiffs,

i.e., whether plaintiffs have an effective state remedy.”

1. Federal Policy of Non-Interference

[2] The first factor to be considered is the federal policy of

non-intervention with respect to state tax matters. The

reluctance of the federal courts to inject themselves into state

or local tax affairs is an oft-repeated theme in the case law of

this Circuit. See, e. g., Houston v. Standard-Triumph Motor

Co., 347 F.2d 194 (5th Cir. 1965); City of Orange v.

Levingston Shipbuilding Co., 258 F.2d 240 (5th Cir. 1958);

Flato Realty Investments v. City of Big Spring, 388 F.Supp.

131 (N.D.Tex. 1975).

[3] This Court shares that reluctance. For this Court to

inject itself into the arena of city tax assessments would be

both unseemly and, in view of the existence of state

procedures for chalienging such assessments, unnecessary.

Thus, in the absence of any other compelling factor, the

Court prefers to adhere to the federal policy of non-

interference in this ‘‘very sensitive local area’. Jones v.

Township of North Berger, 331 F.Supp. 1281 (D.N.J. 1971).

2. Existence of an Effective

State Remedy

The second factor to be considered in determining whether

to apply section 1341 is that of fairness to plaintiff, i. e.,

whether plaintiff has a “plain, speedy and efficient remedy

may be had in the courts” of Texas.

The Supreme Court of Texas has held in City of Houston v.

Blackbird, 394 S.W.2d 159 (1965) that a party contesting an

assessment made by a city under its article 1105b powers is

A-6

not entitled to a trial de novo on the issue of the value of

benefits accruing from the improvements. Rather, the Texas

Court will set aside the acts of the city council on the ground

that such acts were arbitrary or were the result of fraud. /d. at

163.

Plaintiff contends that because such a procedure does not

determine the ultimate and proper amount of the assess-

ment, but merely nullifies the original assessment and

returns the taxpayer to the mercies of the city council, there

exists no adequate state remedy. With this the Court cannot

agree.

|4] The state remedy need not be the best of all possible

remedies. Bland v. McHann, 463 F.2d 21, 29 (5th Cir. 1972),

cert. denied, 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700

(1973). The state remedy need only be adequate, Spector

Motor Service, Inc. v. O'Connor, 340 U.S. 602, 605, 71 S.Ct.

508, 510, 95 L.Ed. 573, 577 (1951), and not unduly

burdensome, United States Steel Corp. v. Multistate Tax

Commission, 367 F.Supp. 107 (S.D.N.Y. 1973); see also

Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299, 72

S.Ct. 321, 96 L.Ed. 335 (1952).

Plaintiff alleges in essence that the fact that the city

council may issue an order of re-assessment against it renders

the state remedy inadequate and will condemn the plaintiff

to an unending and burdensome series of appeals of council

orders. For this Court to so find would require the Court to

assume that the city council would, even after having been

rebuked by a state court for acting arbitrarily, ignore such

admonishment and again proceed in an arbitrary fashion.

This Court declines to give effect to such a presumption, but

instead chooses to presume that the city council will act in

accordance with tenets of good faith, due process and fairness

toward all who come before it.

A-7

[5] At present, plaintiff merely raises the spectre of a

series of arbitrary decisions by the council. This is not

sufficient to hold the state-provided remedy inadequate.

However, were such potential opportunities for abuse to

become a reality, the adequacy of the state remedy might

then be seriously questioned. No such case being before this

Court at present, however, the Court wi!l rely upon the

unbroken series of cases in which the Fifth Circuit Court of

Appeals has recognized in applying 28 U.S.C. §1341 that the

taxpayer has a plain, speedy and efficient remedy in the state

courts of Texas. Tramel v. Schrader, 505 F.2d 1310 (5th Cir.

1975); City of Houston v. Standard-Triumph Motor Co., 347

F.2d 194 (5th Cir. 1965); City of Orange, Texas v. Levingston

Shipbuilding Co., 258 F.2d 240 (5th Cir. 1958); Norton v.

Cass County, 115 F.2d 884 (5th Cir. 1940).

Il. CONCLUSION

For the foregoing reasons, the Court finds that the statutory

bar set forth in 28 U.S.C. §1341 is properly applicable in the

instant case and that defendant’s motion to dismiss should

be granted. Accordingly, it is ordered adjudged and decreed

that plaintiff's cause be, and it hereby is, dismissed for want

of jurisdiction over the subject matter and for failure to state

a claim upon which relief may be granted.

FINAL JUDGMENT

From a consideration of the pleadings submitted in this

cause, it is the opinion of this Court that this action should be

and is hereby dismissed.

This is a FINAL JUDGMENT.

DONE at Houston, Texas, this 25th day of May, 1977.

/s/ Cart O. Bue, Jr.

United States District Judge

B-1

APPENDIX B

ALNOA G. CORPORATION,

A Deleware Corporation

Plaintiff

vs.

CITY OF HOUSTON, TEXAS.

Defendant

Civil Action No. H-77-218

In THe United States District Court

For THE SOUTHERN Disrrict Or Texas Houston Division

February 8, 1977

PLAINTIFE’S ORIGINAL COMPLAINT

To THe Most Honorasie UNirep States District JUDGE:

Alnoa G. Corporation, Plaintiff, presents this its original

complaint complaining of the City of Houston, Texas,

Defendant:

(a) Plaintiff, Alnoa G. Corporation, is a corporation

organized under the laws of the State of Delaware where is

located its principal office and place of business. Plaintiff

does not have a place of business within the State of Texas.

(b) Defendant, the City of Houston, Texas, is a municipal

corporation with the seat of its government in Harris County,

Texas, where its governmental functions are performed.

B-2

Il.

The United States District Court for the Southern District

of Texas has original jurisdiction of all matters presented

herein on either or both of the following grounds:

(a) Title 28, United States Code, Section 1332, there

being a controversy between citizens of different states

and the matter in controversy exceeding the sum or

value of $10,000.00, exclusive of interest and costs;

(b) Title 28, United States Code, Section 1331, there

being substantial questions presented herein arising

under the Constitution and laws of the United States of

America and the matter in controversy exceeds the sum

or value of $10,000.00 exclusive of interest and costs;

further, any particular issue presented hereby which

does not arise under the Constitution and laws of the

United States of America is within the Court’s

jurisdiction as incident and pendent to the jurisdiction

of this Court over the matters arising under the

Constitution and laws of the United States of America,

and this Court’s power to grant full relief.

(a) Almeda Genoa Road is a major public street, 60’ of

public right-of-way which runs generally in an east-west

direction within the corporate limits of Defendant City.

(b) Almeda Genoa Road is presently and has been for

many years an improved and paved two lane street, one lane

for traffic moving in an easterly direction and one lane for

traffic moving in a westerly direction.

B-3

recorded subdivision which abut upon the north side of

Almeda Genoa Road, the great majority of which each

respectively front approximately 61 feet on the north side of

Almeda Genoa Road. A few lots abutting on the north side of

Almeda Genoa Road range in frontage from 59 to

approximately 75 feet. In depth, said lots abutting upon the

north side of Almeda Genoa Road range from 105 feet to 220

feet. Additionaily, Plaintiff owns 25 lots abutting upon the

south side of Almeda Genoa Road. The great majority of

these lots abutting upon the south side of Almeda Genoa

Road each range in width of front footage from 121 feet to

approximately 125 feet. The few remaining lots fronting on

the south side of Almeda Genoa Road vary in front footage

from approximately 127 feet to 168 feet. The depths of the

respective 28 lots abutting on the south side of Almeda Genoa

Road vary from approximately 107 feet to approximately 221

feet.

IV.

(a) During the year 1976 Defendant, the City of Houston,

acting through its City Council, its governing body, did order

that the portion of Almeda Genoa Road on which Plaintiff's

said lots abut be converted into a four lane esplananed

thoroughfare. Almeda Genoa Road to the East had been

theretofore similarly converted and the instant project also

provides for converting the said road in similar manner to the

West.

(b) Upon information and belief, Plaintiff alleges this

action was taken by the adoption of Ordinance No. 76-570

passed on April 7, 1976. No notice of ihis action was given to

Plaintiff.

B-4

purported authority provided by Article 1105 b, Texas

Revised Civil Statutes, Defendant gave notice of a “hearing”

of the proposed assessments against Plaintiff's lots and

against the owner thereof which notice did in fact reach

Plaintiff. In particular, but without limitation, (although the

notice did not in fact so state as required by Article 1105 b)

the issues of special benefits to Plaintiff's lots and alleged

enhanced value thereof were to be determined at this hearing.

(d) At such hearing provided pursuant to the above

statute, January 5, 1977, the City Council of Defendant

undertook to decide the issues there as provided for by the

statutory procedure, including the purely fact issues of

whether there were special benefits or enhanced values

accruing to Plaintiff's lots by virtue of the said conversion of

Almeda Genoa Road, and if so, how much.

(e) Upon information and belief Plaintiff alleges that no

record of the proceedings before the City Council at such

hearing was in fact made or kept by the Defendant City.

(f) There were no governing evidentiary rules utilized at

such hearing to assure consideration by the City Council of

only relevant, reliable, proper, and admissable evidence.

(g) At such hearing nothing was done to provide a basis for

any subsequent review, judicial or otherwise, of the action of

the Defendant’s City Council.

(h) At such hearing there were no procedures utilized to

assure that the decision of the City Council upon the purely

factual issues was in fact based upon relevant, proper,

reliable and admissable evidence actually presented before

the City Council at the hearing.

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(i) No procedures were utilized or available as to give

any assurance that the City Council understood or

applied or correctly applied any governing legal

principles in reaching whatever conclusions it reached.

(j) In point of fact the Council discussed and considered

and one or more of the members thereof gave consideration to

certain utilities that it was stated before the hearing would

become available at some time and related in some manner

to the paving project, which was a legally improper

consideration.

(k) In point of actual fact the Council also ignored the

governing legal principle that special benefit and value

enhancement, if any, was determinable as to each separate

platted lot and gave consideration to the special

circumstances of common ownership thereof by Plaintiff,

which was legally improper.

(1) More in point as to the actual facts, the Council

decided the fact issues of enhancement and special benefits

based on contract costs and that whatever amount Plaintiff

was not required to pay would have to be paid by the City of

Houston.

(m) In point of fact, one or more or all members of the City

Council received and considered evidence communicated

outside the confines of the hearing, both before and after such

hearing was opened and closed, and therefore not being

subject to being rebutted, cross-examined, or explained,

including but not limited to evidence, in fact erroneous, as to

reports of negotiations between Plaintiff and an alleged

prospective buyer of Plaintiff's lots, all of which was legally

improper.

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(n) In point of fact, the City Council did not require or

hear sworn testimony in support of the amount of special

benefits and the enchancements which have been

determined, but by design in conducting what was

considered merely a formal proforma compliance with the

statutory requirement of notice and hearing relied upon the

statements of a city called witness that he recommended to

the Council it assess the property at the amount the City had

theretofore proposed it be assessed, that is, the said witness

for the City did not even undertake to testify that based on

appraisal he had made a determination of amount of special

benefits and enhancement.

(o) In other ways, such hearing was conducted whereby it

was clear, convincing and obvious that the Council did not

decide the purely fact issues of special benefits and

enhancement based on rules as to consideration and weighing

of evidence presented, which evidence would be admissable,

legal, proper, relevant, and reliable, and presented at the

hearing itself; in fact, it was clear, convincing and obvious

that a majority of the Council present did not even know

what its legal obligations were in deciding these fact

questions, or if such legal obligations were known, did not

observe them.

(p) The statutory procedure under said Article 1105 b

contain no provisions or prescriptions which assured or

assures to Plaintiff rights to which it is constitutionally

entitled as specified in subparagraphs (a)-(i) inclusive above

and in other portions of this Complaint and no provisions

which would inhibit or prevent the occurrences, events and

matters specified in subparagraphs (j)-(0) above and is

unconstitutional, under the Fourteenth and Fifth

Amendments of the United States Constitution, both on its

face and in its implementation as to Plaintiff in this case, as

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not providing even minimum safeguards assuring the

minimum essentials of a hearing at which the fact issues here

involved would be decided, even if the City Council of the

City of Houston under the circumstances herein alleged be

otherwise a competent tribunal to fix a money judgment and

lien against Plaintiff and Plaintiff's property, which it will be

shown hereinafter it is not.

(a) On or about January 26, 1977, the Defendant City of

Houston, by and through the action of its said governing

body, and under the colorable process of law and colorable

authority of said Article 1105b adopted Ordinance No. 77-

180. By this ordinance, among other things, the City of

Houston did assess 90°¢ of the cost of what were the alleged

public improvements to Almeda Genoa Road against

Plaintiff's said lots abutting thereon as hereinabove

described and against the Plaintiff as the owner thereof as a

personal liability, all as contemplated by the said statutes,

Article 1105b.

(b) As a result of the said undertakings of assessment by

the Defendant, Plaintiff's unimproved lots abutting on

Almeda Genoa Road have been assessed collectively in the

total sum of in excess of $450,000.00 and Plaintiff has

personally been assessed in this amount, with the assessment

to be a personal liability of Plaintiff as provided for by the

statute and ordinance and the amount thereof has been

affixed as a first and superior lien against Plaintiff’s lots.

pursuant thereto, on their fact and in their application to

Plaintiff in this case, are in direct violation of due process of

law secured to Plaintiff by the Fourteenth Amendment to the

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United States Constitution, and a taking of Plaintiff's

property without just compensation as provided in the Fifth

Amendment to the United States Constitution, such

prohibition of the Fifth Amendment being also a prohibition

under the Fourteenth Amendment, the due process and equal

protection of the laws provisions thereof. Plaintiff is being

deprived of property by means of a settled statutory

procedure among other things, denying the minimum

fundamental essentials of due process of law and minimum

essentials for assuring the equal protection of the laws and

that citizens not be deprived of their property for a public

purpose without just compensation.

Vi.

The purported authority for the assessments of Plaintiff

and Plaintiff's property, as alleged, lies in Article 1105 b of

the Texas Revised Civil Statutes. The material provisions of

said law as involved here are that no assessment shall be

made against abutting property or its owner until ‘after

notice and opportunity for hearing’, that ‘‘no assessment

shall be made against any abutting property or owners

thereof in excess of the special benefits to such properties and

its owners in the enhanced value thereof’, that notice be given

by newspaper advertisement and written notice to the

property owner at least fifteen days before the date of the

hearing, that the hearing ‘‘shall be by and before the

governing body of such City and all owning any such abutting

property, or any interest therein, shall have the right, at such

hearing, to be heard on any matter as to which hearing is a

constitutional prerequisite to the validity of any assessment

authorized by this Act, and to contest the amount of the

proposed assessment, the lien and liability thereof, with

snecial benefits to the abutting properties and owners thereof

by means of the improvements for which such assessments

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are to be levied, the accuracy, sufficiency, regularity and

validity of the proceedings and contract in connection with

such improvement and proposed assessments,” and that

‘“‘anyone owning or claiming any property assessed who shall

desire to contest any such assessment on account of the

amount thereof, or any inaccuracy, irregularity, invalidity, or

insufficiency of the proceedings or contract with reference

thereto or with reference to such improvements shall have the

right to appeal therefrom and from such hearing by

instituting suit for that purpose in any court having

jurisdiction, within fifteen days of the time such assessment

is levied’’.

Vil.

Additional to and cumulative of the patent and latent

constitutional deficiencies hereinabove and _ hereinafter

enumerated and the following:

(a) The statute has no provisions which give even

minimum assurance that the hearing will be conducted

so as to assure the property owner even the minimum

essentials of a hearing based on the results of which the

property owner is subjected to what is the legal

equivalent of a judgment secured by a first and superior

lien on property.

(b) The statute does not provide for the manner and

method by which the findings on the purely fact issues

are to be reviewed by the Court wherein the authorized

suit is instituted.

Supreme Court of Texas, have engrafted upon and

therefore made it by settled decisiona! law a part of the

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statute that the “judicial review”’ will be in accordance

with the unique and unusual “Texas Substantial

Evidence Rule.”

(d) The incorporation into the state statute by settled

decisional law of the Substantial Evidence Rule deprives

the Plaintiff here of a true judicial review of the Council

findings as to special benefits and enhancements.

(e) Under the Rule, the Court gives no consideration

to what occurred or what did not occur before the

Council, which body is, however, under the Rule and

process applied, the only tribunal provided by the state,

judicial or otherwise, with power, authority and

jurisdiction to find the facts as to special benefits or

enhancement. There is no record made, or required to be

made by law, of the hearing under settled Texas

decisional law, and any record presented to the Court

wherein the suit is instituted is considered excludable

and inadmissable and irrelevant.

(f) The Court in which the suit is instituted has no

power, jurisdiction or authority itself to determine the

fact issues as to enhancement or special benefits.

(i) Under the said Texas Substantial Evidence

Rule, there is no fact issue considered to be before

the Court.

(ii) The only issue considered to be before the

Court is considered to be one of law, whether there

could have been presented to the Council, whether

or not it was presented, ‘“‘substantial evidence”

affording reasonable support for the Council’s

findings. The Court makes this determination of

B-11

this law question based on evidence heard by it,

and as alleged, without regard to whether the same

evidence was heard by the City Council, and

without regard to whether or not there was any

relevant evidence before the City Council, and

without regard to what matter or matters, if any,

there were upon which the Council, as the trier of

the facts relied.

(iii) Because there is considered under the Texas

Substantial Evidence Rule to be no fact issue

before the Court, no jury is permitted.

(iv) The Court by virtue of the express

provisions of Article 1105 b does not have power,

authority or jurisdiction to determine the amount,

if any, of special benefits and enhancement, and

may only either deny the Plaintiff any relief, or

enter a judgment setting aside the levied

assessments.

(v) Under the express provisions of the statute, if

the Court should set aside the assessment

proceeding, the City Council is authorized to

commence, without limitation as to time for doing

so, and without limitation as to the number of

times it does do so, new assessment proceedings

under Article 1105 b.

(g) The unique and peculiar result also is that no

remedy by way of appeals to any State Appellate Court is

provided to Plaintiff because if the Plaintiff prevails in

the District Court in which the proceeding authorized by

the statute is instituted, the Plaintiff's only relief will be

a right to a “re-hearing’’ or repeated ‘‘re-hearings”’

before the Council. Thus, the Plaintiff is effectively

B-12

deprived of any opportunity to present its contentions

and secure effective relief in respect of its said

contentions within the State’s court structure, including

without limitation, Plaintiff's federal constitutional

contentions.

(h) Although the statute contains the requirement of

a “hearing”, as applied, and in particular as applied

with the engrafting onto the statute of the Texas

Substantial Evidence Rule, the requirement becomes in

actual result a nullity, or substantially a nullity, the

result in actuality being only that there be a notice of a

hearing given and perhaps that the Council conduct

some kind of proceeding at the time specified which in

the Council’s sole and exclusive judgment constitutes a

“hearing”.

Vill.

The process to which Plaintiff has been subjected and will

be subjected perforce the operation of the said statute, and

particularly as such statute has been interpreted by settled

Texas decisional law,

(a) Deprives the Plaintiff of due process of law

guaranteed to Plaintiff by the Fourteenth Amendment,

(b) Deprives Plaintiff of the equal protection of the

laws as guaranteed by the Fourteenth Amendment,

(money and/or its land) without just compensation as

prohibited by the Fifth Amendment, a part of the

Fourteenth Amendment by reason of the due process

clause thereof,

B-13

(d) Is repugnant to fundamental constitutionally

guaranteed concepts of justice, equity, fair play, and

access to courts for the correction of grievances,

(e) Operates to deprive Plaintiff of guaranteed

minimal essentials of a hearing before a tribunal with

power and jurisdiction to render a final decision as to a

purely fact issue, that is, of enhancement and special

benefit, if any, and if there is enhancement or special

benefit, the amount thereof, among others, the right to

have the said fact issues determined based on some

appropriate weight assigned to credible and proper

evidence, the right to rebut unfavorable evidence, if

there be any, the right of cross examination, the right to

have fact findings made in accordance with governing

legal principles, and the right to know what evidence

was considered by the fact finding tribunai in reaching

its findings and conclusions,

(f) Is deprived of the right not to have, and the right

by means of judicial review to test whether same did or

did not occur, the fact issues decided arbitrarily or

capriciously, by biased fact finders, on inequitable or

unjust grounds or indeed that said findings were not

made fraudulently or what would be the legal equivalent

of fraudulently.

IX.

The statute is unconstitutional in constituting the City

Council of the City of Houston, its sole and exclusive

governing body, the tribunal provided by the State, to decide

the traditional and constitutional fact issues of enhancement

and special benefits, at least there being present here an

unconstitutional application of the statute and the

proceedings which have been conducted pursuant thereto.

B-14

(a) The foundation prescribed by the statute for the

levy of assessments against abutting land is essentially

one reflecting the traditional notion of unjust

enrichment, that is, assuming the authority of the City

to make a decision in the interest of the City and its

citizens generally to convert Almeda Genoa Road from

an existing two-lane paved street into a four-lane

esplanaded thoroughfare, the abutting land is required

to reimburse the City to the amount that the abutting

land is specially benefited or enhanced in value. No

purer example of a fact issue traditionally vested as to

its decision in a judicial tribunal could be found, such as

is the case with the traditional vesting of authority in

courts in the instance of condemnation of land for a

public purpose of the decision as to the amount of money

to which the owner thereof is entitled.

(b) The City Council before it came to consider these

fact issues had already determined to undertake the

project, to undertake it as an assessment project, to

authorize the letting of a contract for the work, and that

the work was in the public interest, that is, the Council

had determined in pursuance of its purely political and

legislative objectives that the project was of benefit to

the City generally and its residents generally and a

needed contribution to the arterial thoroughfare system

of the City, all without notice to Plaintiff and all without

Plaintiff's request, and indeed over Plaintiff's objections

thereto voiced at the hearing.

as it was represented to the City Council to be is

$2,268,209.91. Of this amount it was proposed as

represented to the City Council that $761,516.45 be

assessed against abutting land and land owners. Of this

B-15

amount of $761,516.45 the amount of approximately

$450,000.00 has been assessed against Plaintiff or

Plaintiff's lots.

(d) The conversion of Almeda Genoa Road has been a

project long publicly represented to the citizens of

Houston as one to be undertaken by the City and as a

B-16

the due process and equal protection clauses of the

Fourteenth Amendment to determine the fact issues of

the amount of enhancement and special benefits to

Plaintiff's lots.

priority project. This United States District Court is not deprived of

jurisdiction under 28 U.S.C. 1341 (The Johnson Act) for the

(e) The City through its Council had already following reasons, singly and collectively —

converted the road from Gulf Freeway to Monroe Road

to a four-lane esplanaded thoroughfare and had opened

this section to traffic (Plaintiff's lots front on Almeda

Genoa Road from Monroe Road to Ballantine Street).

(f) The City is limited by state law to assessments

only against abutting land, regardless of the size,

configuration, or useability of said land and it is

statutory precluded from collecting for any special

benefits and enhancement accruing to non-abutting

land, notwithstanding the existence of such benefits and

enhancement to such non-abutting land.

(g) Upon information and belief, Plaintiff alleges that

no funds had been budgeted by the City of Houston or

were available for use by the City of Houston for the

payment of more than the amount which was

represented to the Council to be the City’s estimated

portion of the total cost.

(h) Under the circumstances alleged in subparagraph

(a)-(i) above, the members of the City Council could not

be an unbiased tribunal to be invested with the power,

authority and jurisdiction, or substantially final power,

authority and jurisdiction, within the prescriptions of

(a) The assessments levied in this case are not a tax

within the meaning of Section 1341.

(b) The Courts of the State of Texas, including the

highest court of the State, have held such assessments

not to be a tax, nor the levy thereof an exercise of the

taxing power of the state or any subordinate branch or

division thereof.

as hereinbefore alleged, that the landowner of abutting

land is required to reimburse the public authority, the

City in this instance, for the amount by which the public

improvements are found to specially benefit or enhance

the value of its land.

(d) For the reason herein alleged, with particular

reference to the allegations contained in paragraph VII,

there is no plain, speedy and efficient remedy available

in the State Court to Plaintiff;

(e) More particularly as hereinbefore alleged, there is

no remedy available in the courts of the State wherein

Plaintiff can make, or can be reasonably assured of

B-17

making, a meaningful presentation of, and obtaining a

meaningful decision upon its constitutional contentions

contained hereim - -- --

XI.

If the court should decide to hold Article 1105 b

unconstitutional generally, then Plaintiff alleges in the

alternative that under the facts, conditions, events and

circumstances herein alleged there has been an

unconstitutional application and _ unconstitutional

implementation of the statute as to Plaintiff in respect of the

assessments which have been levied against Plaintiff and

Plaintiff's land of which complaint is made herein.

XII.

Said Article 1105 b, and Ordinance No. 77-180 adopted

under authority of said Article, are unconstitutional on their

face, or have been given an unconstitutional application and

unconstitutional implementation as to Plaintiff in that as

reflected hereinabove and more particularly in paragraph IX,

there is provided for by the statute and there has occurred

here an unconstitutional confusion and merging of

legislative, executive, and judicial functions, as a violation of

separation of powers inherent in the federal and state

constitutional systems and inherent in the principle of

“federalism” and renders therefore unconstitutional and

unconstitutional as to Plaintiff the processes and procedures

hereinabove and hereinafter described with more

particularity.

XII.

Even if the Court should decline to hold unconstitutional

said Article 1105 b, or hold there has not been an

B-18

unconstitutional application and implementation thereof as

to Plaintiff in this instance, said assessments should be set

aside and held for naught for the following reasons, taken

singly and collectively,

(a) It is fact that three of the leading appraisors of

land to be found in the City of Houston testified, after

being engaged by Plaintiff to determine independently

the amount of special benefits and enhancement, to a

range thereof from $20-$25 per linear foot.

(b) Secondly, only one witness presented anything on

behalf of the City and he did not give admissible

testimony of an expert opinion as to enhancement and

special benefits but only “testified’’ to a reeommenda-

tion that the Council assess the amount which had been

proposed and thereafter merely presented argument

that his recommendation should be followed.

city witness, including land owners and/or their

representatives were opposed to the proposed

assessments.

(d) Several such land owners or their representatives,

unknown to Plaintiff or Plaintiff's witnesses prior to the

hearing, two of whom testified they were themselves real

estate brokers, testified they agreed with the appraisor

witnesses who had been employed by Plaintiff.

(e) The assessments which have been levied are

unlawful for the reasons hereinabove alleged in this

paragraph XIII and the reasons hereinafter alleged in

this XIII and for the reasons as alleged in paragraph IV

hereof.

B-19

(f) Said assessments are grossly excessive and grossly

in excess of any special benefits or enhanced value of

Plaintiff's land.

(g) Said assessments are so grossly excessive and so

grossly in excess of any special benefits or enhanced

value so as to become constructively fraudulent and

quasi fraudulent if not fraudulent in fact.

(h) Said assessments were not and cannot be

reasonably supported by substantial evidence before the

City Council, or obtainable substantial evidence.

(i) With particular reference in support thereof of the

facts alleged in paragraph IX, the City Council was not a

legally competent tribunal to determine and cannot

become a legally competent tribunal to determine the

facts as to enhancement and special benefits.

(j) The assessment determinations which have been

made were made capriciously, arbitrarily, as a result of

abuse of discretion, and in reckless disregard of the facts

and in reckless disregard of Plaintiff's rights and of the

duties of the Council colorably vested in it by

Article 1105(b).

(k) The findings are on their face and beyond dispute

capricious, arbitrary, made in abuse of discretion and

made in reckless disregard of the facts and of Plaintiff's

rights, and are on their face conflicting in that, as a

particularized example, Plaintiff's Lot 1, Block 45,

which contains approximately 17,914 square feet is

being assessed $10,255.48 or approximately 60¢ a square

foot whereas Plaintiff's Lot 10, Block 43 which contains

28,600 square feet is being assessed $7,382.34 or

awe

B-20

approximately 23¢ a square foot. If the 6V¢ a square foot

which is the amount of the assessment against Lot 1,

Block 45 were applied against Let-10, Block 43, the

amount of the assessment against Lot 10, Block 43

would be $17,160.00 instead of $7,382.34 whereas if the

assessment equivalent to 23¢ a square foot which has

been made against Lot 10, Block 43 were applied as to

Plaintiff's smaller lot, Lot 1, Block 45, the assessment

would be $4,000.00 instead of the assessed amount of

$10,140.00. Each of the Plaintiff's said lots is affected to

a greater or lesser degree by the principles inherent in

the specified calculation.

(1) Uncontrovertedly, the sole or principal benefit of

the conversion of Almeda Genoa Road into a four-lane

esplanaded thoroughfare is to the City generally, to the

improvements in the arterial traffic flow of the City,

more particularly to all property geographically related

to Almeda Genoa Road, whether or not abutting, and

also more particularly the provisions apparently deemed

needed by the city for a thoroughfare from the Gulf

Freeway to Telephone Road (a principal major city

thoroughfare) and thereafter on to the East of the said

Telephone Road ultimately to connect the existing Gulf

Freeway to a projected new freeway lying to the East of

Telephone Road and the benefits, if any, to Plaintiff and

to Plaintiff's property are only incidental.

(m) At the hearing on January 5, 1977, of which

hearing all councilmen received prior notice, only five of

the nine members of Council, counting the Mayor, were

present for the entire hearing and heard all of the

evidence. The hearing was closed on January 5.

Thereafter, on January 26, 1977, with seven members

present, only tive of whom had been present at the

B-21

hearing to hear the evidence, six members voted for the

assessments which have been levied, and one member

voted against the assessments, the one voting against

the assessments being one of the five councilmen present

at the hearing, thus of the nine members of Council only

four who were present at the hearing voted for the

Ordinance levying such assessments.

IV.

(a) For the purpose of attempting to present on a bona fide

basis the possible amounts of special benefits and

enhancement, and on Plaintiff's assumption it would receive

a bona fide hearing by the City Council, and notwithstanding

Plaintiff's opposition to the entire project, Plaintiff has

heretofore incurred expenses for attorneys’ fees and

appraisors in excess of $15,000.00.

(b) Plaintiff will necessarily incur additional such

expenses in a presently undetermined but very large amount

at whatever point Plaintiff becomes successful as a final

matter in vindicating its constitutional rights and/or for other

reasons invalidating the assessments.

general equitable jurisdiction and its jurisdiction to provide

complete relief for the violation of Plaintiff's constitutional

rights, and vindication of Plaintiff's rights, to order the

payment of Plaintiff's said expenses, in the amount they are

ultimately determined to be particularly as a result of the

facts and circumstances as are elsewhere herein alleged.

(d) The Court should under the facts as alleged in this

case, exercise for the benefit of Plaintiff this power and

authority as such is stated to be in the preceding

subparagraph (c).

B-22

XV.

(a) The action of the City Council, taken without hearing

on or about April 7, 1976, by Ordinance No. 76-570, had in

and of itself the practical result of imposing a lien on

Plaintiff's property since prospective buyers were at least

from such date required to assume a lien to be imposed and

imposed in a very large amount, if to any extent an

undetermined amount.

(b) Thereafter, information was available and made

available to the public generally, and the prospective buyers

in particular that the assessments would be between $60-$70

per linear foot which had the effect of re-enforcing the

practical effect of the impending assessment on Plaintiff's

property and the effect of further establishing the probable

amount which would be demanded.

and advised persons who requested information that the lien

itself, or at least a notice of intention to file a lien, would be

filed even before the holding of the assessment hearing.

(d) The Defendant has of the time of the filing hereof

either completed the process by filing the lien, or if it has not

done so, will do so shortly if not prevented from doing so by

the order of this court.

(e) Plaintiff has already been irreparably damaged and

will be further irreparably damaged if the Defendant is not

prevented and enjoined from taking or conducting any

further proceedings in connection with the Almeda Genoa

Road assessment project and Plaintiff will continue to suffer

and to sustain damage and in increasing amounts and the

Plaintiff has no adequate remedy at law.

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(f) More specifically but without limiting the foregoing

subparagraph (e), Plaintiff will be damaged and additionally

be damaged by the implementation of the colorable

provisions of Article 1105 b authorizing new and repeated

assessment hearings, unlimited as to time for the holding

thereof, relief from which would be repeated additional suits

to set same aside, and Plaintiff is entitled to the protective

order of the court by way of injunction specifically and

additionally restraining and enjoining any future assessment

hearing or hearings by the Defendant City under the

colorable authority of Article 1105 b.

XVI.

At the same hearing and by the same Ordinance the

Defendant also made assessments against Plaintiff and

Plaintiff's Lot 11, Block 43, and Lot 23, Block 48 for the

widening and paving of the pre-existing improved Monroe

Road. Said Lot 11, Block 43 was assessed an additional

amount of $13,967.90, making the total assessment against it

$21,778.99, or approximately 76¢ per square foot and Lot 23,

Block 48 was assessed an additional amount of $13,967.00,

making the total assessment against it $16,817.35 or

approximately $2.67 per square foot. In addition Lot 23, Block

48 abuts on Monroe Road only 105.90’, although assessed for

217’ and Lot 11, Block 43 although abutting Monroe only

221.03’ was assessed for 230.991. All the allegations of this

complaint apply with the same force and effect to the

assessment of Plaintiff's property abutting Monroe Road as

they do to Plaintiff’s property abutting Almeda Genoa Road.

XVII.

(a) Supplementary of the allegations of subparagraph (b)

of Paragraph IX hereof, when the Defendant’s City Council

—

B-24

adopted Ordinance No. 76-570 on April 7, 1976, and caused

same to be filed of record in the Deed Records of Harris

County, Texas, the Council then and there decided and ‘by

such action (and the said filing thereof) made the decision

which was carried into effect by Ordinance No 77-180, which

was the equivalent of deciding the amount of assessments to

be levied and the equivalent of burdening Plaintiff's lots with

the lien therefor, the material contents of said Ordinance No.

76-570 established the intention and the decision of the

Council to assess the maximum permitted under state law for

curbs, gutters, and sidewalks (100%) and other alleged

improvements (Paving) 90% and without reference to or

limitation as to special benefits and enhancements.

(b) The said material portions of the said ordinance are as

follows:

“Section 2. Within the following limits, a part of the

cost of such improvements shall be paid by the City of

Houston and a part thereof shall be paid by assessments

against the abutting property:

1. Almeda-Genoa Road: From 17 feet east of

east property line of Telephone Road, east to the

end of the existing concrete pavement at a point

373.16 feet east of the east property line of Monroe

Road.

2. Monroe Road: From 152.0 feet North of the

North property line of Swiss Lane, North to a point

48.0 feet south of the south property line of

Constellation Lane.

Said Assessments shall be on the following basis:

(a) The abutting property within the limits

hereinabove defined and the real and true owners

B-25 B-26

of Thelma P. Head and Joan M. Head and J. G. Head are

now owned and were as of the date of the adoption of the

ordinance owned by Plaintiff Alnoa-G. Corporation.

thereof shall be assessed for and pay all of the costs of

curbs, gutters and sidewalks in front of their respective

properties and not exceeding nine-tenths (9/10) of the

estimated cost of the remaining such improvements (in

accordance with the estimate thereof by the Director of WHEREFORE, Plaintiff prays —

Public Works and Engineering, herein ordered to be

made by him), exclusive, however, of the cost of such

improvements within intersections of streets with other

streets, avenues and alleys as so estimated; provided,

however, that in no event shall the cost of said

improvements to be paid by the abutting property and

the real and true owners thereof exceed the total cost of

curbs, gutters and sidewalks and nine-tenths (9/10) of

the estimated cost of such improvements exclusive of

curbs, gutters and sidewalks as so estimated by the

Director of Public Works and Engineering.

(b) The City of Houston shall pay all of the

remainder of said cost of said improvements after

deducting the amounts herein specified to be paid by the

abutting property and the real and true owners thereof

as set out in subparagraph (a) above.

Section 3. The amounts payable by the abutting

property and the real and true owners thereof shall be

assessed against such property and the real and true

owners thereof, shall constitute first and prior liens upon

such abutting property and a personal liability of each

such owner, and shall be payable to City of Houston, or

assigns... .”

XVIII.

(a) That the assessments levied against Plaintiff and

Plaintiffs land, the ordinance levying same and all

action taken in connection therewith or pursuant thereto

and heretofore by the Defendant be set aside, void and

held for naught as being taken in violation of the United

States Constitution.

(b) If the Court shall decline, or find it unnecessary,

to hold the statute and/or proceedings taken pursuant

thereto to be in violation of the United States

Constitution, that said assessments and all actions of

Defendant heretofore taken in connection with the levy

of assessments against Plaintiff and Plaintiff's land be

nevertheiess set aside, voided and held for naught upon

the grounds, singly and collectively, as in this

Complaint alleged.

judgment based on the evidence as shall be presented at

the trial hereof whether Plaintiff's land will be specially

benefitted or enhanced and whether, and in what

amount, said special benefits and enhancement, if any,

are chargeable to Plaintiff under the applicable

sustantive law as it is found by the Court to be.

(d) That Defendant, by preliminary injunction and

thereafter by permanent injunction, be restrained and

enjoined from any further and additional proceedings of

any kind or character by way of assessing or attempting

The said assessment ordinance states the owner of the lots

to be Thelma P. Head and Joan M. Head, and in one instance

J. G. Head, whereas in fact all said lots assessed in the name

intees --

B-27

to assess Plaintiff or Plaintiff's land for the cost or any

portion of the cost of the improvements to Almeda

Genoa Road, including without limitation, the

implementation of any additional assessment

proceedings under the colorable authority of

Article 1105b except to the extent permitted or allowed

by the court based on the de novo determination of the

amounts, if any, legally chargeable to Plaintiff based on

a judicial and constitutional determination of said

amounts, if any.

(e) That the court order payment to Plaintiff of its

reasonable attorneys’ fees, heretofore incurred, and to be

hereinafter incurred, and if necessary to make Plaintiff

whole or substantially whole and award exemplary

damages.

(f) For all other relief, at law or in equity, as to which

Plaintiff shall show itself on the trial hereof to be justly

entitled.

Respectfully submitted,

/s/ Wituiam V. Counts

WituiaM V. Counts of

LANE, SAVAGE, Counts & WINN

3330 Republic National Bank Building

Dallas, Texas 75201

214/741-3633

/s/ WituiamM A. OLSON

WILLIAM A. OLSON

O.Lson & OLSON

One Allen Center, Suite 1645

Houston, Texas 77002

713/658-0465

C-1

APPENDIX C

United States Court of Appeals

FirtH Circuit

EDWARD W. WapsworTH TEL 504—589-6514

CLERK 600 CAMP STREET

NEW ORLEANS, LA. 70130

OFFICE OF THE CLERK

FEBRUARY 6, 1978

Mr. William V. Counts

Attorney at Law

LANE, SAVAGE, Counts, & WINN

3330 Republic National Bank Bldg.

Dallas, Texas 75201

No. 77-2279

ALNOA G. CORP.

CITY OF HOUSTON, TEXAS

Dear Counsel:

Under revised Rule 21 (1) of the Supreme Court effective

July 1, 1970, a record is no longer required in connection with

an application for writ of certiorari and, therefore, will not be

routinely prepared by this office. 38 LW 3502.

A copy of the opinion judgment and denial of rehearing are

still required by the Supreme Court to be incorporated as an

appendix to your petition. Enclosed are copies of the said

documents which have been entered in this cause.

Very truly yours,

Epwarp W. WapswortnH, Clerk

/s/ Brenna M. Hauck

Deputy Clerk

enclosures

C-3

United States Court of Appeals

For THe Firrx Circuit

No. 77-2279

Summary Calendar

D.C. Docket No. CA-77-H-218

ALNOA G. CORPORATION,

a Delaware corporation,

Plaintiff-Appellant,

versus

CITY OF HOUSTON, TEXAS,

Defendant- Appellee.

Appeal from the United States District Court for the

Southern District of Texas

BerorE GOLDBERG, CLARK anp FAY, Circuit JupGEs.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Southern

District of Texas, and was taken under submission by the

Court upon the record and briefs on file, pursuant to Rule 18;

ON CONSIDERATION WHERFOF, It is now here

ordered and adjudged by this Court that the judgment of the

said District Court in this cause be, and the same is hereby,

affirmed;

C-4

It is further ordered that plaintiff-appellant pay to

defendant-appellee, the costs on appeal to be taxed by the

Clerk of this Court.

November 23, 1977

ISSUED AS MANDATE: DECEMBER 30, 1977

C-5

In The United States Court Of Appeals

For Tue Firrx Circuit

No. 77-2279

ALNOA G. CORPORATION,

a Delaware Corporation,

Plaintiff-Appellant,

versus

CITY OF HOUSTON, TEXAS,

Defendant-Appellee,

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING

(December 22, 1977)

BerorE GOLDBERG, CLARK, anno FAY, Circuit Jupces.

Per CurIAM:

Ir Is ORDERED that the petition for rehearing filed in the

above entitled and numbered cause be and the same is

hereby denied.

ENTERED For THE Court:

/s/ Peter T. Fay

United States Circuit Judge

C-6

PROCEEDINGS

Pitf’s Original Complaint filed. (1) Summons

Issued.

***

Pitf's Interrogatories to Deft. filed

(NWB) MOTION CONFERENCE on Deft.

Motion to Dismiss for Lack of

Jurisdiction and for Failure to State a

Claim, filed.

1. Pitf. has sued City over special

assessment for paving pleading lack

of due process in assessment

procedure and inadequacy of

appeals process in state court.

Motions and Briefs are to be filed.

Deft. pleads 28 USC 1341.

2. As Magistrate reads Tramel v

Schrader, 505 F. 2d 1310 (5th Cir.

1975), although that case was

pleaded differently and the appeal

based upon different points, the

Court clearly stated that special

street improvement assessments

are taxes and that district courts

may not restrain the assessment on

collection of such taxes and,

further, that there is an adequate

remedy in Texas courts.

C-7

H-77-218 CARL O. BLUE, JR. MAG. BLACK

DATE NR. PROCEEDINGS

3. Pltf. case should be dismissed.

EXCEPTED TO BY PLTF.

5-9-77 6. Dft. MOTION to Dismiss for Lack of

Jurisdiction and MOTION to Dismiss for

Failure to State a Claim, filed. (NWB conf. 5-

9-77)

5-9-7711. Pitf. MOTION to Require Deft. to Answer

Complaint, filed. (NWB conf. 5-9-77)

5-9-77 12. Pltf. MOTION to Require Deft. to Answer

Interrogs, filed. (NWB conf. 5-9-77)

5-24-77 13. (COB) MEMORANDUM AND ORDER.

Deft’s Motion to Dismiss GRANTED; based

on want of jurisdiction over subj. matter & for

failure to state a claim upon which relief may

be granted. (MHE) A/n. BN

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.