Willett Wilson, Plaintiff-appellant, v. City of Port Lavaca, Texas, et al., Defendants-appellees, 409 F.2d 1362 (5th Cir. 1969)

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U.S. Court of Appeals for the Fifth Circuit - 409 F.2d 1362 (5th Cir. 1969) April 28, 1969
Rehearing Denied May 23, 1969

Appeal from the United States District Court for the Southern District of Texas.

Willett Wilson, Houston, Tex., for appellant.

Harry F. Maddin, Victoria, Tex., Mike Fricke, City Atty., Port Lavaca, Tex., Cullen, Mallette, Maddin, Edwards & Williams, Victoria, Tex., for appellees.

Before GEWIN, McGOWAN*  and MORGAN, Circuit Judges.

PER CURIAM:


The background of this appeal is set forth in an opinion by Judge Connally, D.C., 285 F. Supp. 85 (1968), writing for a three-judge court (Brown, Circuit Judge, and Connally and Singleton, District Judges) constituted by reference to 28 U.S.C. § 2281. In that opinion Judge Connally stated the conclusion of himself and his colleagues that appellant's claim for injunctive and declaratory relief was not within the scope of the statute providing for consideration by a three-judge court, nor did it state a cause of action which, on the merits, was appropriate for judicial relief. Speaking also in the capacity of a single District Court judge, Judge Connally adopted the reasoning of the three-judge court as his own, and entered a judgment dismissing the complaint. See generally, Jackson v. Choate, 404 F.2d 910 (5th Cir. 1968), and Smith v. Ladner, 260 F. Supp. 918 (S.D. Miss. 1966).

On petition for a writ of certiorari, the United States Supreme Court regarded the matter as being before it in the posture of an appeal from a decision by a single-judge District Court that the convening of a three-judge court was not warranted. It concluded, accordingly, that the appeal lay to a Court of Appeals and not to the Supreme Court, and it directed that appropriate steps be taken to enable such an appeal to be taken. 391 U.S. 352, 88 S. Ct. 1502, 20 L. Ed. 2d 630 (1968). This is that appeal.

We have considered the reasons adopted by Judge Connally for his refusal to convene a three-judge court and for his dismissal of the complaint as stating no claim for either injunctive or declaratory relief appropriately to be granted by the District Court. We find them persuasive to the point of requiring no elaboration by us. The judgment appealed from is, accordingly,

Affirmed.

 *

Judge Carl McGowan of the District of Columbia Circuit, sitting by designation