Waterman, Anderson and Feinberg, Circuit Judges.
The appellants here, the plaintiffs below, are certain individuals who are non- residents of New York but who allegedly commute during their respective work weeks from their homes to the City of New York where they are employed, and a New Jersey membership corporation of some 1800 members, all of whose members are New Jersey and Connecticut residents who in the course of their regular employment commute to and from New York during their work weeks. This action was commenced in the United States District Court for the Southern District of New York to enjoin enforcement against non-residents of the provisions of the New York Tax Law and the Administrative Code of the City of New York which impose earnings taxes on non-residents, and to declare those provisions unconstitutional as violative of the privileges and immunities of citizens guaranteed to citizens in the first sentence of Section 2 of Article IV of the U.S. Constitution, and to citizens and persons under the due process and equal protection clauses of Section 1 of the Fourteenth Amendment. In addition, or in the alternative, relying on those same constitutional provisions, appellants sought a declaratory judgment holding unconstitutional various provisions of the New York laws which afford services and benefits of one kind or another to individuals who reside in New York,*fn1 for appellants claim they, tax-paying non- residents of New York, are discriminated against because of their unequal access to the services and the benefits available to New York residents.
Plaintiffs moved, pursuant to 28 U.S.C. §§ 2281 and 2284, to have a three judge district court convened. The several New York City officer-defendants moved to dismiss the complaint and the New York State officer-defendants in an opposition affidavit to plaintiffs' motion also requested the dismissal of the complaint.
Judge Bonsal below, in a studied and learned opinion, reported at 279 F. Supp. 40 (1967), denied the plaintiffs' motion to convene the statutory court and granted the motion to dismiss. We affirm and we find it quite unnecessary to detail again the respective allegations of the several plaintiffs, which allegations are well set forth by Judge Bonsal at 279 F. Supp. 40, 43, 44, fn. 2, and 45.
The Second Circuit has held that a single district judge may dismiss a petition for a three-judge court for want of jurisdiction. Utica Mutual Insurance Company v. Vincent, 375 F.2d 129, 130-131, n. 1 (2 Cir.), cert. denied, 389 U.S. 839, 88 S. Ct. 63, 19 L. Ed. 2d 102 (1967); Green v. Board of Elections of the City of New York, 380 F.2d 445 (2 Cir. 1967), cert. denied, 389 U.S. 1048, 88 S. Ct. 768, 19 L. Ed. 2d 840 (1968); Offermann v. Nitkowski, 378 F.2d 22 (2 Cir. 1967); Hall v. State of New York, 359 F.2d 26, 27 (2 Cir.), cert. denied, 385 U.S. 879, 87 S. Ct. 161, 17 L. Ed. 2d 106 (1966).*fn2 Quoting from California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S. Ct. 865, 82 L. Ed. 1323 (1938), we stated in Green, supra at 448, that "The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject," and therefore we held that the test to be applied by a single district judge as to whether to grant a petition for the convocation of a three judge district court is whether the claim of unconstitutionality has substantiality. Thus, if the district judge is of the belief that the petitioner's claim does not meet that test he may deny it without convoking a three judge court. In the instant case the district judge found that appellants' claims that the tax and the "benefit" statutes were unconstitutional were not substantial and did not meet the test. We agree with Judge Bonsal.
28 U.S.C. § 1341 provides that: "The district courts 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 court of such State." Both the State and City of New York provide for remedies.*fn3 Nevertheless, appellants urge that 28 U.S.C. § 1341 does not preclude their cause of action because they seek relief under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983 from a deprivation of their civil rights, and because no "plain, speedy and efficient remedy" is available to them in the state courts. There is no merit in either of these arguments as Judge Bonsal has pointed out.
Appellants would have us hold that a plaintiff may avoid the prohibition contained in § 1341 by basing his complaint upon 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. The Seventh Circuit faced the same contention in Gray v. Morgan, 371 F.2d 172 (1966), cert. denied, 386 U.S. 1033, 87 S. Ct. 1484, 18 L. Ed. 2d 596 (1967) and concluded:
Under the circumstances present here, we find nothing in the history or construction of the civil rights statute, § 1343, to indicate its concern with the validity of a state tax as a revenue measure.
Since that decision, however, the Supreme Court has handed down two brief per curiam opinions in Houghton v. Scranton, 392 U.S. 639, 88 S. Ct. 2119, 20 L. Ed. 2d 1319 (1968), and Damico v. California, 389 U.S. 416, 88 S. Ct. 526, 19 L. Ed. 2d 647 (1967), apparently expanding the scope of federal jurisdiction under §§ 1343 and 1983. These decisions were not available to Judge Bonsal when he prepared his opinion below and because of these late cases we treat this issue a bit exhaustively. It seems obvious that these two short per curiam opinions, though indeed purporting to enlarge federal jurisdiction, were not meant to expand federal jurisdiction in the area of state tax litigation to the point that appellants urge. Neither of these decisions involved taxes in any way. Houghton was a criminal matter, Damico involved California's welfare law; and, considering the special attention courts have always shown to tax matters even when constitutional rights are involved, e.g., Nelson v. City of New York, 352 U.S. 103, 77 S. Ct. 195, 1 L. Ed. 2d 171 (1956), plus the unequivocal congressional statement set forth in § 1341, we conclude that when there are adequate state remedies available, § 1341 means what it so plainly says and that federal jurisdiction is still precluded by it.
The Court has on numerous occasions emphasized that a state court should first adjudicate the meaning and scope of a tax statute passed by its legislature, and that Supreme Court review of such a statute's constitutionality should be had only after an adjudication by the State's court of last resort. For example, in Matthews v. Rodgers, 284 U.S. 521, 525, 52 S. Ct. 217, 219, 76 L. Ed. 447 (1932) the Court said:
Whenever the question has been presented, this Court has uniformly held that the mere illegality or unconstitutionality of a state or municipal tax is not in itself a ground for equitable relief in the courts of the United States. If the remedy at law is plain, adequate, and complete, the aggrieved party is left to that remedy in the state courts, from which the complaint may be brought to this Court for review if any federal question be involved. . . .
And again in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300-301, 63 S. Ct. 1070, 1074, 87 L. Ed. 1407 (1943), the Court ...