Lumbard, Chief Judge, and Smith and Anderson, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
This is an appeal from an order of the District Court for the District of Connecticut, M. Joseph Blumenfeld, Judge, 318 F. Supp. 1274, denying plaintiff-appellant's motion for the convening of a three-judge court and granting defendant-appellee's motion to dismiss the complaint.
The appellant, Mrs. Cleo Johnson, the mother of ten children, is entirely financially dependent on assistance paid to her by the State of Connecticut under the Aid to Families With Dependent Children (AFDC) program under Title IV of the Social Security Act. Two of appellant's children, Frances and Marianne, also receive benefits under the Old Age, Survivors and Disability Insurance (OASDI) program by virtue of the death of their father, James Johnson. Since the children are minors, these funds, which presently amount to $78 per month for each child, are paid to the children's mother. This action arose because of the position taken by appellee whereby the entire amount received by Mrs. Johnson for the two children under OASDI is deducted from the total amount of assistance awarded to the family. According to existing Connecticut Welfare Regulations absent the OASDI payments, the two children would be entitled to $35.85 in assistance each. Appellant agrees that this amount ($71.70) should be deducted from the AFDC benefits going to the family since the two children are no longer eligible. The question is whether the difference between the amount of assistance that these two children would otherwise be allowed ($71.70) and the actual amount of the OASDI payments ($156.00) should be deducted from the AFDC benefits and thereby applied to the support of the rest of the family. Appellant argues for both constitutional and statutory reasons this money belongs to the two beneficiaries and may not validly be expended by Mrs. Johnson for the support of herself or other members of the family. In her complaint appellant alleges that the actions of the state are arbitrary and unreasonable and therefore constitute a denial of equal protection and due process of law -- specifically in that (1) the state's action places the two OASDI beneficiaries in the role of legally liable relatives but treats them differently from other legally liable relatives who are afforded an exemption of $250 per month before they must contribute support to their needy relatives; (2) that they are treated differently from those OASDI beneficiaries with representative payees not on AFDC, in that the state requires a diversion of funds from them which would not be diverted if their representative payee, Mrs. Johnson, were not on AFDC; and (3) that the state is by its actions compelling Mrs. Johnson to take property belonging to the two children and apply that property to satisfy the state's obligation to support Mrs. Johnson and her children in violation of due process of law. Secondly, Mrs. Johnson contends that the state's actions are in conflict with overriding federal statutes and regulations.
As with a number of other recent cases in this circuit involving the welfare system, the difficult problems raised here are jurisdictional. Judge Blumenfeld in an able opinion based his granting of appellee's motion to dismiss on his finding that the court lacked subject matter jurisdiction under 28 U.S.C. § 1343(3) or (4) in the light of Hague v. C.I.O., 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939) and our decision in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969) which confine the jurisdiction of the federal courts in actions brought pursuant to 42 U.S.C. § 1983*fn1 which fail to meet the jurisdictional amount requirement of 28 U.S.C. § 1331 to cases where "the right or immunity [allegedly infringed] is one of personal liberty not dependent for its existence upon the infringement of property rights." 307 U.S. at 531, 59 S. Ct. at 971. In spite of the attempt of this court in Eisen to clarify the scope of section 1343(3), the question continues to create difficulties.*fn2
As Judge Friendly noted in Eisen, the one Supreme Court case which it was (at that time) difficult to fit within Justice Stone's formula in Hague was King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968). The question in that case was the validity of the Arkansas "substitute father" regulation. Although the plaintiff there, as here, initially raised a constitutional claim, the Court found it unnecessary to reach the constitutional issue, deciding the case on the basis of the inconsistency with the federal statute under which the AFDC program was administered. In spite of the fact that the only "right" involved in King would appear to have been the plaintiff's entitlement to welfare payments,*fn3 the Court sustained jurisdiction under section 1343(3) without discussion.*fn4 Since Eisen, there have been other Supreme Court decisions involving various aspects of the AFDC program where the Court has assumed that jurisdictional requirements have been met, but without examining the problem. Thus, in Lewis v. Martin, 397 U.S. 552, 90 S. Ct. 1282, 25 L. Ed. 2d 561 (1970), the Court invalidated on statutory grounds a California welfare regulation which provided that payments to a "needy child" who "lived with his mother and a stepfather or adult male person assuming the role of spouse to the mother although not legally married to her" shall be computed after consideration is given to the income of the stepfather. Again, as in King, the Court indicated no doubts as to jurisdiction.
In Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970), a Maryland regulation which limited the maximum amount of aid given to any one family unit was under challenge. A three-judge court below had invalidated the regulation as a violation of the equal protection clause after having specifically upheld jurisdiction under section 1343(3). [297 F. Supp. 450 (1968).] The Supreme Court reversed on the merits without intimating that there was any question as to the existence of the requisite subject matter jurisdiction.
Finally, in Rosado v. Wyman, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970), the question was whether a New York statute which provided for lesser payments to AFDC recipients in Nassau County than those allowed for New York City residents constituted a violation of equal protection. A three-judge court had been convened, but before a decision was rendered, the New York statute under which such payments were made was amended to permit the Commissioner of Social Services, in his discretion, to make grants to recipients in Nassau County equal to those provided for New York City residents. The three-judge panel then concluded that the constitutional attack on the statute had been rendered moot and remanded the case to the single judge to whom the complaint had been presented "for further proceedings as are appropriate." Judge Weinstein then issued a preliminary injunction barring the state from reducing or discontinuing payments or regular recurring grants and special grants. [304 F. Supp. at 1360.] An interlocutory appeal was taken from the injunction and an appeals panel of this court reversed the district judge, each judge filing his own opinion. Chief Judge Lumbard and Judge Hays (for the majority) were of the view that, for somewhat different reasons, Judge Weinstein should not have ruled on the merits of the statutory claim. [414 F.2d 170 (2 Cir., 1969).] Judge Feinberg, in dissent, specifically found that jurisdiction existed under section 1343(3). The Supreme Court reversed this court specifically noting:
For essentially those reasons stated in the opinion of the District Court and Circuit Judge Feinberg's dissent, we think the District Court correctly exercised its discretion by proceeding to the merits. * * * Once petitioners filed their complaint alleging the unconstitutionality of § 131-a [the New York statute], the District Court sitting as a one-man tribunal, was properly seised of jurisdiction over the case under § 1343(3) and (4) of Title 28 * * *. [397 U.S. at 401, 403, 90 S. Ct. at 1212, 1213.]
It is difficult, moreover, to distinguish the present case from Solman v. Shapiro, 300 F. Supp. 409 (1969), aff'd per curiam, 396 U.S. 5, 90 S. Ct. 25, 24 L. Ed. 2d 5 (1969), a decision of a three-judge court in this circuit. In Solman the welfare department was determining the level of assistance going to a family unit by taking into account the income of a stepfather living in the same house, although under Connecticut law the stepfather had no legal duty to support the children. The court, in an opinion by Judge Blumenfeld, invalidated the Connecticut practice on the authority of King v. Smith, supra, without reaching the constitutional claim. It also upheld jurisdiction under section 1343(3) noting:
Thus, even though the case was decided on statutory grounds alone, the presence of a constitutional claim was sufficient to resolve the jurisdictional question. [300 F. Supp. at 412 n. 3.]
The only apparent distinction between the present case and Solman is that the income which the state regulation conclusively presumed to be available for the support of the family unit came from a different source -- in the one case from the stepfather and here from the two children receiving OASDI benefits. It is difficult to see how this distinction has any relevance to the jurisdictional question.
The most consistent application of the property-personal rights distinction has been in cases involving taxation where the courts have been uniform in dismissing these actions for want of section 1343 jurisdiction.
In Alterman Transportation Lines v. Public Service Commission, 259 F. Supp. 486 (M.D.Tenn.1966), aff'd per curiam, 386 U.S. 262, 87 S. Ct. 1023, 18 L. Ed. 2d 39 (1967) and Hornbeak v. Hamm, 283 F. Supp. 549 (M.D.Ala.), aff'd per curiam, 393 U.S. 9, 89 S. Ct. 47, 21 L. Ed. 2d 14 (1968), the Supreme Court affirmed dismissals in such cases on the grounds of lack of section 1343 jurisdiction without opinion. We must therefore at least in the taxation field continue to follow the Hague ...