United States Court of Appeals Second Circuit.
*1020 William H. Emerson, Corporation Counsel, Joseph B. Boyle, Charles B. Forsyth, and Henry McGonegal, all of Rochester, N. Y., for appellants.
George L. Grobe, U. S. Atty., of Buffalo, N. Y., David L. Bazelon, Asst. Atty. Gen., Roger P. Marquis, of Washington, D. C., A. Devitt Vanech, Asst. Atty. Gen., and John F. Cotter, Attorney, Department of Justice, of Washington, D. C., for appellee.
Before SWAN, CHASE and FRANK, Circuit Judges.
FRANK, Circuit Judge.
1. The appellants contend that, as this suit was for an injunction restraining the collection of a state tax, the district court, because of the last sentence of 28 U.S.C.A. § 41(1) [now § 1341], lacked jurisdiction. We cannot agree. We think Congress did not intend this statutory provision, added by amendment in 1937, to apply to the United States which was not specifically named therein. United States v. United Mine Workers, 330 U.S. 258, 272, 273, 67 S. Ct. 677, 91 L. Ed. 884. The Committee reports support this interpretation.[1] See also City of Springfield v. United States, 1 Cir., 99 F.2d 860; United States v. Okaloosa County, D. C., 59 F. Supp. 426.
2. We reject appellants' contention that a three-judge court was necessary, pursuant to 28 U.S.C.A. § 380 [now § 2281]. For here the United States did not seek a temporary injunction. Ayrshire Collieries Corp. v. United States, 331 U.S. 132, 140-144, 67 S. Ct. 1168, 91 L. Ed. 1391.[2]
3. Land owned by the federal government is not, without its consent, manifested by a Congressional enactment, subject to state taxation, regardless of whether jurisdiction over the land has been ceded to the federal government. Van Brocklin v. State of Tennessee, 117 U.S. 151, 180, 6 S. Ct. 670, 29 L. Ed. 845. This is true even when the tax has been levied before the acquisition by the United States, if, as here, the tax had not previously become a lien. United States v. City of Buffalo, 2 Cir., 54 F.2d 471, 473.
Affirmed.
[1] S. Rep. No. 1035, H. Rep. No. 1503, 75th Cong. 1st Sess.
[2] Judgment here was entered February 11, 1947, and notice of appeal was given March 8, 1947; accordingly, the amendments to the statute, now found in 28 U.S.C.A. §§ 2281-2284, are inapplicable.
