Merchants Packing Co. v. Rogan

PER CURIAM. In these cases the trial court granted a temporary injunction, and alter our decision in the Fisher Flouring Mills Cases, 78 F.(2d) 889, involving the processing tax on flour, vacated the injunction and denied an application for a supersedeas pending appeal by the following order: “That, in view of the action had and taken by the United States Circuit Court of Appeals for the Ninth Circuit in the matter of petitions submitted to it for injunction pending appeal in matters involving processing taxes under the act of Congress popularly known as Agricultural Adjustment Act [7 USCA § 601 et seq.], it is the expression of this court that any relief in the form of supersedeas, whereby the temporary injunction heretofore granted and dissolved by the or [2] der appealed from, be restored to full force and effect during the pendency of the appeal, should be pursued by the plaintiff in the form of an application for an injunction pending appeal to be presented to said United States Circuit Court of Appeals for the Ninth Circuit if the plaintiff wishes to secure such relief.” An appeal was taken from the order vacating the temporary injunction and is now pending. The appellants have applied for a writ of supersedeas in some of these cases and for an injunction pending appeal in others. Unless these applications are granted the appeal from the order effecting the temporary injunction will be ineffective. The respondents rely upon our decision in the Fisher Flouring Mills Cases. In those cases the trial court had denied an injunction and an application was made to this court for such an injunction pending the appeal. The situation is changed by amendment to the law affecting the remedy of a taxpayer to recover an invalid tax. The facts alleged also are different from those involved in the Fisher Flouring Mills Cases. The questions involved are substantial and the matter should be determined upon the merits of the appeal from the order. Supersedeas and injunction granted.