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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 970

## Text

Vie

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Bupreme Court, YJ a

0 it, S -
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

il

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

aa

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, ).

2
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

3

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

4

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

5

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

—

7

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

8

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

9

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

10

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.

1]

“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

“**

12

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

13

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.

l4
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.

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23
\
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

24

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.

26

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

27

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

28

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

29
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.

of

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,
v.

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

(c) Plaintiff owns fifty-seven (57) platted lots out of a
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

(c) Purporting to act under the statutory process and
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.

B-5

(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.

B-6

(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

B-7

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.

(c) Article 1105b, and Ordinance No. 77-180 adopted
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

B-8

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

B-9

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.

(c) However, the Courts of Texas, including the
Supreme Court of Texas, have engrafted upon and
therefore made it by settled decisiona! law a part of the

B-10

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,

(c) Constitutes a taking of Plaintiff's property
(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.

(c) The cost of the entire Almeda Genoa Road project
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.

X.

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.

(c) The foundation for the levy of the assessments is,
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

ee

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.

(c) All persons at the hearing, other than the said one
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.

(c) The Court has jurisdiction and power, both under its
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).

PO

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.

(c) In fact officials of the Defendant City also informed
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.

B-23

(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.

(c) That this court at the trial hereof, render
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

oo

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.

v.

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

CARL ©. BLE. JR. MAG. BLACK

PROCEEDINGS

Pitf’s Original Complaint filed. (1) Summons
Issued.

***

Pitf's Interrogatories to Deft. filed

aa

(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

kk

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0486%3A1. Public record. Not legal advice.