Opinion
Alfred Sutro and Francis N. Marshall, both of San Francisco, Cal. (Pillsbury, Madison & Sutro, of San Francisco, Cal., of counsel), for plaintiff.
U.S. Webb, Atty. Gen., and H. H. Linney and James J. Arditto, Deputy Attys. Gen., for defendants.
Before DENMAN, Circuit Judge, and ST. SURE and ROCHE, District Judges.
DENMAN, Circuit Judge.
The stipulation of facts filed herein supports the essential allegations of the bill of complaint.
The material, the storage use of which defendants seek to tax, consists (1) of specific order equipment, including central office switchboards, frames, switches, cables, wires, and other essential components of telephone and telegraph transmission; and (2) reserve or 'stand-by' facilities of the sort just described which must be kept on hand in sufficient quantities to meet emergencies and new demands.
The principles governing the taxation of the use of this material are identical with those applicable in Southern Pacific Co. v. Corbett, D.C., 23 F.Supp. 193, filed May 3, 1938. For the reasons stated in our opinion in that case, we conclude that the bill herein must be dismissed.
We find the facts to be as stipulated and agreed by the parties. From those facts we conclude that the threatened enforcement of the California Use Tax Act, St.Cal.1935, p. 1297, will not impose a direct or undue burden on plaintiff's interstate commerce business.
The permanent injunction is denied and the bill dismissed.