In Union Packing Co. v. Rogan, D.C., 1937, 17 F.Supp. 934, 940, the court declared: "It is the specific command of the Congress of the United States that 'no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.' Revised Statutes, § 3224, 26 U.S.C.A. § 1543. This command, which cannot be waived by agents of the government, Gouge v. Hart (D.C.Va.1917) 250 F. 802, by recent enactment, has been made to apply to declaratory judgments. The statute excepts specifically actual controversies 'with respect to Federal taxes.' Jud.Code, § 274d, as amended, 28 U.S.C.A. § 400."
The foregoing judicial construction confirms the view of this court that the clause of the Declaratory Judgments Act, italicized above, was enacted for the purpose of continuing the legislative policy of section 3224 of the Revised Statutes. Cases arising since the passage of the provision in issue have involved challenges to the validity of varied tax impositions and, as was to be expected, such questions were found not to be within the scope of a declaratory judgment. See W.B. Scaife & Sons v. Driscoll, 3 Cir., 1937, 94 F.2d 664; Beeland Wholesale Co. v. Davis, 5 Cir., 1937, 88 F.2d 447; Aponaug Mfg. Co. v. Fly, D.C., 1937, 17 F.Supp. 944. Of course, the result would be the same under section 3224 of the Revised Statutes. See Simonin's Sons v. Rothensies, D.C., 1936, 13 F.Supp. 807. Compare Penn v. Glenn, D.C., 1935, 10 F.Supp. 483, in which the court held that where a purported tax actually was not a tax but an attempt to regulate something beyond the power of Congress to regulate, a declaratory judgment to that effect was proper.
Cf. Vogt & Sons v. Rothensies, D.C., 1935, 11 F.Supp. 225, 231.
On the other hand, there is no suggestion that the permissible scope of a declaratory judgment in this regard would be more restricted than that under section 3224 of the Revised Statutes.
It would seem that Section 274d of the Judicial Code should be interpreted to deny a declaratory judgment to a petitioner only where the latter could not obtain an injunction under R.S. § 3224 against illegal seizure by a tax collector. In fact, such a rule would appear to be too restrictive inasmuch as there are cases where an equity court would refuse to grant an injunction because of the failure to state the need for equitable relief, while such a prerequisite would not be necessary for a declaratory judgment. In any event, it would seem clear that if a court of equity could enjoin the collector for taking illegal action, a federal court similarly should be able to issue a declaratory judgment without violating the inhibition against decisions as to federal taxes.
Aside from analogy to cases under R.S., section 3224, logically it is arguable that all that is sought is a declaration of the rights of the various interested parties to the fund in question. The tax collector claims by virtue of an alleged tax lien. Plaintiff claims by virtue of an alleged prior assignment. There will be no decision as to the propriety of the tax. There is no controversy over a federal tax. There is, however, a controversy as to the alleged rights of various claimants to specific property. In light of this analysis, it would seem evident that a declaratory judgment as to the property rights of the parties involved would be permissible.
In its motion to dismiss the defendant Rothensies also raised the question as to whether the petitioner is a proper party.
Defendant argues that since the assignment in question was made to the Amalgamated Clothing Workers of America as trustee for plaintiff Filipowicz, the Union is the proper party plaintiff and not Filipowicz. The Declaratory Judgments Act permits a petition to be brought by "any interested party". "This phrase merely reiterates the ordinary requirement that a plaintiff in a cause of action must show an adequate interest." Moore's Federal Practice (1938) vol. 3, p. 3226. Illustrative of a lack of such adequate interest is Putnam v. Ickes, 1935, 64 App.D.C. 339, 78 F.2d 223 (private citizen cannot challenge title to land claimed and occupied by others although the claim and occupation is fraudulent and wrongful as against the United States Government), and Wallace v. Ganley, 1938, 68 App.D.C. 235, 95 F.2d 364 (potential invasion of right insufficient to warrant judicial intervention; there must be an actual or threatened impairment of rights). In the instant case, plaintiff Filipowicz claims a beneficial interest in the fund. The Union can claim only bare legal title as trustee for Filipowicz and his fellow employees. Filipowicz, therefore, would appear to be a proper party. Perhaps it would not be necessary to join Filipowicz had the Union alone brought action as a party plaintiff. But it is clear that the joinder of an unnecessary additional party plaintiff would not be grounds for dismissing the petition.
Since the court has allowed the petition of the Amalgamated Clothing Workers of America to intervene as a party plaintiff, it is not necessary further to consider the defendant's contention that the Union as assignee has a direct interest in the subject matter and is an indispensable party to the action.
In view of the previously stated conclusions that the complaint fails to allege that the government's lien was not established prior to the assignment, the defendant's motion to dismiss is granted.