Commonwealth of Pennsylvania ex rel. Margiotti v. Kyle , 79 F.2d 520 ( 1935 )

BUFFINGTON, Circuit Judge.

In this case the commonwealth- of Pennsylvania filed a bill in a state court against the collector of internal revenue, seeking to enjoin the latter from enforcing collection of United States taxes assessed against that state for carrying on the sale of liquors through its state liquor stores and an excise tax upon the liquor the state had in store. On filing the bill, the state court granted the injunction prayed for. On application of the collector, the case was removed to the court below, and, on motion of the state to remand on the ground the court below had no jurisdiction, the District Court refused so to do, on the ground that it had jurisdiction of the federal question involved and on the merits dismissed the bill on two principles — one, that the state had adequate remedy at law, viz., paying the contested taxes and bringing suit for the recovery of the same because allegedly illegally assessed; and for the further reason that under the cases of State of Ohio v. Helvering, 292 U. S. 360, 54 S. Ct. 725, 78 L. Ed. 1307, and State of South Carolina v. U. S., 199 U. S. 437, 26 S. Ct. 110, 50 L. Ed. 261, 4 Ann. Cas. 737, the taxes were legally payable. Thereupon the commonwealth took this appeal, assigning as error the refusal to remand and the dismissal of the bill.

Finding no error in the court’s action, the judgment is affirmed.