(concurring).
Since we must, if possible, finally dispose of litigation presented to us involving constitutional and other questions by placing our grounds of decision on nonconstitutional questions,1 I agree with the majority opinion in assuming, for the purposes of this case only, that the suit against the appellee is one against him personally and not against the State of California, of which he is the mere agent. We thereby avoid the question whether the suit is in violation of the Eleventh Amendment.
Appellant’s complaint sought a declaratory judgment that it was not liable to pay the tax because (a) the California Corporation Income Tax Act, by its very terms, itself excludes taxation of the income of any person alien to California earning it in another state,2 a contention involving only statutory construction; (b) if by its terms the Act be construed to include taxation of income so earned by an alien, it violates the due process clause of the Fourteenth Amendment; and (c) the commerce clause of the Constitution, Art. I, sec. 8, clause 3, prevents such state taxation if the income sought to be taxed is held to be earned in interstate commerce. Appellant also prayed injunctive relief.
With regard to injunctive relief, I do not agree with appellant that Congress in its 1937 amendment, 28 U.S.C.A. § 47(1), withdrawing jurisdiction to enjoin the collection of state taxes, did not affect the jurisdiction in federal courts in the same way as if it had been enacted prior to the Declaratory Judgment Act of 1934, 28 U.S. C.A. § 400. The 1937 act had to do with jurisdiction. The Declaratory Judgment Act concerns solely a remedy. The 1937 amendment denying federal jurisdiction to enjoin in state tax cases is to be construed as if it were enacted on the date of the enactment of the original jurisdictional statute. Steffler v. Johnston, 9 Cir., 121 F.2d 447; Blair v. Chicago, 201 U.S. 400, 475, 26 S.Ct. 427, 50 L.Ed. 801.
*327The word “controversy” in the Declaratory Judgment Act would then have excluded state tax disputes. The later insertion of the phrase “except with respect to Federal taxes” in the Declaratory Judgment Act would not have restored the state tax cases to the content of the word “controversy.” In my opinion the act of 1937 withdrew from the federal courts the right to enjoin the collection of state taxes.
It seems clear that the only relief controlling any action of the appellee with respect to the collection of the tax would have the effect of “enjoining, suspending, or restraining” such collection. Appellant does not dispute this, but contends that in the absence of any other possible relief the declaratory judgment alone is within the District Court’s jurisdiction and that it is entitled to have such a judgment deciding the question of the validity of the tax.
It is unnecessary to decide either (a) the contention involving the construction of the tax act, or (b) and (c) involving that act’s constitutionality. Assuming we have the power so to declare appellant’s rights, it is within our discretion to deny its exercise in a case where the challenged state statute provides a special administrative officer for the determination of the assessment and a remedy for review of his action. In this I agree with Judge Rutledge’s opinion in Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 124 F.2d 235, 249.
Here the taxing act provides that appellant may pay the assessment of appellee tax administrator, sue in the state court for a refund, where it may raise constitutional and other contentions, and ultimately have them decided by the Supreme Court of the United States. The cases cited in the majority opinion show we have decided that this constitutes a plain, speedy and efficient remedy.
Our declaratory judgment, if within our power, would be res judicata in the state court if in favor of the appellee and a piecemeal disposition of one issue in the case among several other possible issues, such as the amount of tax, interest factors, and the like. It is a case where we may refuse to exercise our discretion to become a mere unnecessary adjutant to a completely rounded state system for the imposition and collection of its income taxes.
Appellant cites People v. Austin, 47 Cal. 353, 361, defining a tax as “A charge levied by the sovereign power upon the property of its subjects,” and People v. McCreery, 34 Cal. 432, 454, stating taxes are “Charges imposed by or under the authority of the Legislature, upon persons or property subject to its jurisdiction.” Appellant claims these holdings are implicit in the taxing statute which thus by its terms excludes a tax upon income earned in Minnesota by a Minnesota corporation a non-resident of California.