The opinion of the court was delivered by: FRANKEL
This action, brought by some 40 New York taxicab fleet owners and a taxicab owners' cooperative, challenges the constitutionality of a one-cent per gallon excise tax on the sale of certain leaded gasoline by distributors within the City of New York. Under the authority of New York Tax Law § 284-b, enacted in 1971, New York City Local Law 40, L.L. 1971, imposes the tax on "motor fuel which contains one-half gram or more of tetra ethyl lead, tetra methyl lead or any other lead alkyls per gallon, sold within or for sale within such city . . . ." The tax is administered and collected for the benefit of the City by the New York State Tax Commission.
Plaintiffs contend primarily that the tax is inconsistent with Section 211 of the Clean Air Act, as amended, 42 U.S.C. § 1857f-6c, and the regulations of the Environmental Protection Administration promulgated thereunder, and therefore offends the Supremacy Clause. Additionally, they maintain that it creates an impermissible burden on interstate commerce; that, in light of its alleged inconsistency with other City taxing ordinances (which are in turn said to be inconsistent with each other), the law is unconstitutionally vague; and that, by reason of claimed confusion on the part of both Tax Commission personnel and producers and vendors of gasoline as to the standards applicable to payment of the tax, it has been administered in a fashion which violates plaintiffs' rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Plaintiffs accordingly ask the court to declare both the City taxing ordinance and the State enabling legislation null and void, and to enjoin their enforcement. They also demand a refund of $ 1,407,792.03 for taxes paid from 1971 through 1974. Jurisdiction is alleged under 28 U.S.C. §§ 1331, 1343(3), and 1337.
The only issue now before the court is whether plaintiffs' claims may be adjudicated in this forum. Defendants the City of New York, the State Tax Commission, and the State Commissioner have moved for dismissal of the complaint on the ground that the suit is maintained in violation of the Tax Injunction Act of 1937, 28 U.S.C. § 1341. The court concludes that the motion should be granted.
Preliminarily, some procedural brush must be cleared. Shortly after filing this lawsuit, plaintiffs commenced a proceeding under New York C.P.L.R. Article 78 in the Supreme Court of the State of New York, Albany County, for judicial review of a Final Determination of the State Commission's Tax Appeals Bureau denying their application for the refund also sought here. The respondents in that proceeding, members of the Commission there represented by an Upstate office of the Attorney General have similarly moved for dismissal, on the ground that this action constitutes a prior proceeding for the same relief. Unsurprisingly, plaintiffs complain that they discern a whipsaw. They maintain that the State's demand for dismissal in state court on the cited ground signifies a "binding election" by the defendants for federal adjudication of the merits of their claim, i. e., that the § 1341 objection has been waived. However, the State defendants' counsel here represent that the Attorney General's left and right hands have now met and joined in the position that the state proceedings, "once instituted," must be "preferred" over a federal determination of the matter, pursuant to both the limitations of § 1341 and the "policy" of that office.
The short resolution of this dispute is to observe that it is irrelevant; with all respect, neither the policies of the State's attorneys nor any litigant's election, "binding" or otherwise, can invest this court with subject matter jurisdiction which federal law otherwise denied. Beyond this, however, the conundrum proves to be apparent only. To invoke at least one of the state statutory remedies on which defendants themselves rely in arguing for dismissal under § 1341, it was essential that plaintiffs first seek the administrative determination which is a condition precedent to Article 78 review. Having done so, they were equally obliged to institute the proceeding for review of the Commission's adverse ruling within the time allowed by the taxing statute; it is thus disingenuous for defendants to maintain that plaintiffs invited their claimed predicament by filing two lawsuits. On the other hand, it is clear that the State's motion to dismiss the Article 78 proceeding on the stated ground was prudent so long as the instant case, or at least this motion, was pending. The court is advised that at the instance of the State respondents, decision on the application for dismissal of the state court action has been deferred to await the outcome here; and defendants concede it will become moot should they prevail. Thus, the procedural fencing made possible by concurrent lawsuits before two sovereigns has not impaired either court's ability fully to consider the issues properly before it a result illustrating, in another dimension, the important principles of federalism to which we now turn.
The Tax Injunction Act, 28 U.S.C. § 1341, provides:
"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 courts of such State."
As we have but recently been reminded, the "policy of restraint" embodied in this command, rooted "in equity practice, in principles of federalism, and in recognition of the imperative need of the State to administer its own fiscal operations," both reflects and confirms our settled "equitable duty to refrain from interfering with a State's collection of its revenue except in cases where an asserted federal right might otherwise be lost." Tully v. Griffin, Inc., 429 U.S. 68, 73, 97 S. Ct. 219, 222, 50 L. Ed. 2d 227 (1976). With respect to petitions for Injunctive relief, the "peculiar force" of this mandate is unequivocal:
"The scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may be preserved without it. 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. . . ."
Matthews v. Rodgers, 284 U.S. 521, 525-26, 52 S. Ct. 217, 219, 76 L. Ed. 447 (1932); see also Township of Hillsborough v. Cromwell, 326 U.S. 620, 622-23, 66 S. Ct. 445, 90 L. Ed. 358 (1946); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 297-99, 63 S. Ct. 1070, 87 L. Ed. 1407 (1943). Although our highest Court has as yet declined to decide whether the statute by its terms similarly prohibits declaratory relief concerning the invalidity of a state tax, Great Lakes Dredge & Dock Co. v. Huffman, supra, 319 U.S. at 299, 63 S. Ct. at 1073, this court is unmistakably advised that "those considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes, save in exceptional cases, require a like restraint in the use of the declaratory judgment procedure." Id. For either purpose, we must repair initially to the standard set forth in § 1341, for it is now understood that the "restraint" counselled in Huffman becomes a compulsion to withhold declaratory relief where a taxpayer's state remedies are "plain, speedy and efficient" within the meaning of that Act. See American Commuters Ass'n v. Levitt, 405 F.2d 1148 (2d Cir. 1969); City of Houston v. Standard-Triumph Motor Co., 347 F.2d 194 (5th Cir. 1965); Wyandotte Chemicals Corp. v. City of Wyandotte, 321 F.2d 927 (6th Cir. 1963); Klotz v. Consolidated Edison Co., 386 F.Supp. 577 (S.D.N.Y.1974); Hickmann v. Wujick, 333 F.Supp. 1221 (E.D.N.Y.1971).
The inquiry thus narrows to the question whether the remedies available to plaintiffs in the courts of New York State satisfy this test. The answer must be in the affirmative. Tully v. Griffin, Inc., supra, held that federal injunctive relief should not have issued because the declaratory judgment procedure available under New York C.P.L.R. § 3001 furnished a "plain, speedy and efficient" means for a taxpayer to challenge the imposition of a sales tax on constitutional grounds while preserving the right to contest the amount of tax due. Adhering to the judgment reflected in the summary affirmance in Ammex Warehouse Co. v. Gallman, 414 U.S. 802, 94 S. Ct. 163, 38 L. Ed. 2d 39 (1973), Aff'g Ammex-Champlain Corp. v. Gallman, 72 Civ. 306 (N.D.N.Y., Mar. 15, 1973) (unreported), the Court found this to be true despite a provision in the state taxing statute which limited the taxpayer to Article 78 review of an administrative determination and in fact explicitly precluded any action for an injunction, declaratory judgment, money had and received, or any other "action or proceeding." The Court remained "fully persuaded" that ...