This is an action by A. Otis Birch against nine State officers of California, namely, Charles J. McColgan, Franchise Tax Commissioner, Paul Peek, Secretary of State, Earl Warren, Attorney General, George R. Reilly, Fred E. Stewart, R. E. Collins, William G. Bonelli and Harry B. Riley, members of the State Board of Equalization, and John F. Dockweiler, District Attorney of Los Angeles, County; and against four other defendants, namely, Birch Securities Company, a Nevada corporation, Birch Holding Company, a Delaware corporation, M. Estelle C. Birch and R. R. Landrum. The complaint prays for interlocutory and permanent injunctions restraining the State officers from enforcing against Birch Securities Company the California Bank and Corporation Franchise Tax Act (General Laws, and Supp. 1939, Act 8488), on the ground that the Act is unconstitutional; and, on the same ground, restraining Birch Securities Company, its officers and directors, from complying with the act or submitting to its enforcement. The State officers have moved to dismiss the action for lack of jurisdiction and for failure to state a claim for which relief can be granted. The application for an interlocutory injunction and the motion to dismiss the action have been heard and are now to be determined by this court, constituted as provided in § 266 of the Judicial Code, 28 U.S.C.A. § 380 .

Pertinent sections of the California Bank and Corporation Franchise Tax Act are §§ 4, 5, 11, 13, 25, 27, 30, 31 and 32. Pertinent provisions of § 4 are in subdivisions (3), (4) and (5) thereof:

Section 5 defines the term “doing business” as “actively engaging in any transaction for the purpose of financial or pecuniary gain or profit.” Section 11 defines the term “income year” as “the calendar year or the fiscal year ending during such calendar year, upon the basis of which the [taxpayer’s] net income is computed/’ and defines the term “fiscal year” as “an accounting period of twelve months or less ending oti the last day of any mouth other than December.”

Section 13 provides: “Every bank and corporation subject to the tax imposed by this act shall, within two months and fifteen days after the close of its income year, transmit to the [franchise tax] commissioner a return in a form prescribed by him, specifying, for the income year, all such facts as he may by rule, or otherwise, require in order to carry out the provisions of this act.”

Section 25 provides:

Section 27 provides: “If, in the opinion of the commissioner, or the State Board of Equalization, as the case may be, there has been an overpayment of tax, penalty or interest by a taxpayer for any year for any reason, the amount of such overpayment shall be credited against any taxes then due from the taxpayer under this act, and the balance shall be refunded to the taxpayer. * * * No such credit or refund shall be allowed or made after four years from the last day prescribed for filing the return or after one year from the date of the overpayment, whichever period expires the later, unless before the expiration of such period a claim therefor is filed by the taxpayer. * * ”

Section 30 provides:

Section 31 provides:

Section 32 provides:

Plaintiff’s application for an interlocutory injunction was made in and by his complaint, which is verified. The defendant State officers have filed an answer denying some of the allegations of the complaint, but their answer is not verified. The other defendants have not appeared. No evidence has been submitted by any of the defendants. For present purposes, therefore, the allegations of the complaint are taken as true. The facts there alleged are substantially as follows:

Plaintiff is and was at all pertinent times the owner and holder of 49% of the capital stock of Birch Holding Company, which is and was at all pertinent times the owner and holder of all the capital stock of Birch Securities Company. M. Estelle C. Birch and R. R. Landrum are and were at all pertinent times the owners and holders of 51% of the capital stock of Birch Holding Company. They and plaintiff together constitute, and did at all pertinent times constitute, the board of directors of Birch Holding Company and the board of directors of Birch Securities Company. They and plaintiff are and were at all pertinent times officers of both companies, plaintiff being president, M. Estelle C. Birch vice president, and Landrum secretary of each company.

Birch Securities Company (hereafter called the Company) is not and never was a financial corporation. It is not and never was actively engaged in any transaction for the purpose of financial or pecuniary gain or profit. It is and was at all pertinent times a corporation organized to hold the stock or bonds of other corporations. It has never traded in such stock or bonds or other securities held, nor has it engaged in any activity other than the receipt and disbursement of dividends from such stock or interest from such bonds. Therefore, although it has an office in California, it is not and never was a corporation doing business in California, within the meaning of § 4, supra.

On or about December 10, 1935, the Company transmitted to the Franchise Tax Commissioner, pursuant to § 13, supra, a return specifying, for its income year ended September 30, 1935, all facts required by the Commissioner, and paid for that year the tax disclosed by the return, namely, the minimum tax of $25 prescribed in § 4. Oil or about December 10, 1936, it made a similar return and paid a similar tax for its income year ended September 30, 1936. As the Company never did business in California, the minimum tax so paid by it was, for each of said years, the only tax for which it was liable. Hence the Commissioner could not lawfully assess or propose to assess any additional tax against the Company for either of said years. It is presumed, therefore, that no such assessment was made or proposed. This presumption is strengthened by the fact — which the complaint expressly alleges - — that no notice of any such proposed assessment was received by the Company.

On or about April 1, 1938, the Commissioner, under color of § 32, supra, transmitted the Company’s name to the Secretary of State and stated to the Secretary that, with respect to its income years ended September 30, 1935, and September 30, 1936, the Company was a delinquent taxpayer — which was untrue. Because of that untrue statement, and for no other reason, the Secretary issued a certificate stating that the Company’s corporate powers, rights and privileges were suspended and forfeited. There was in fact no such suspension or forfeiture; for, under § 32, suspension or forfeiture occurs only where there is actual delinquency, and in this case there was none.

On August 23, 1938, the Commissioner, under color of § 31, supra, brought an action (No. 58345) in the Superior Court of Sacramento County in the name of the people of the State of California to collect of the Company a tax of $6,336.14 for its income year ended September 30, 1935, and a tax of $1,137.63 lor its income year ended September 30, 1936, a total of $7,473.77, with interest and costs. Said action No. 58345 was at all times and is now being prosecuted by the Attorney General.

To the complaint in said action No. 58345, the Company filed an answer and an amended answer. Said complaint falsely alleges that the Company is and was at all times therein mentioned a corporation doing business in California; that, by reason thereof, it became and is liable for the taxes sought to be collected in said action ; atid that said taxes are now due and owing. The amended answer denies these allegations, states that no tax is due or owing by the Company, and prays that said action be dismissed.

On or about January 14, 1941, the Attorney General filed in said action No. 58345 a motion to strike the amended answer on the ground that, because of the suspension and forfeiture purportedly evidenced by the aforesaid certificate of the Secretary of State, the Company was not entitled to defend said action. By letters dated January 14, 1941, and January 30, 1941, the Attorney General warned the Company’s attorney that any appearance on the Company’s behalf by its attorney or any of its officers “might constitute a misdemeanor” — a warning which was, in effect, a threat.

The Attorney General’s letters having come to the attention of M. Estelle C. Birch and R. R. Landrum, they informed plaintiff that, because they feared prosecution under § 32, supra, they desired plaintiff (the Company’s president) and the Company to desist from any activity which might subject them to such prosecution and from all activities in connection with the defense of said action No. 58345. Plaintiff thereupon demanded of the Company and its Board of Directors — consisting of himself, M. Estelle C. Birch and R. R. Landrum — that the Company defend and continue to defend said action No. 58345; that it file in said action a second amended answer challenging the constitutionality of the California Bank and Corporation Franchise Tax Act; “and/or that it apply to any other court of competent jurisdiction in order to test the constitutionality of the Act.”

At a meeting held on February 18, 1941, the board considered plaintiff’s demand and, by a vote of two to one, refused to comply with it, resolving instead that the Company should “engage in no activities whatsoever” — all because a majority of the board feared prosecution under § 32. Plaintiff made a similar demand on the Company’s sole stockholder (Birch Holding Company) and its board of directors, with a similar result. Thereafter, on February 27, 1941, this action was commenced.

The complaint alleges that the California Bank and Corporation Franchise Tax Act is unconstitutional in that it attempts to deprive the Company of its property without due process of law and thus violates the Fourteenth Amendment. On that ground, among others, the complaint prays for interlocutory and permanent injunctions (1) restraining the defendant. State officers (a) from assessing against or collecting from the Company any tax imposed by the act, (b) from maintaining or attempting to maintain any suspension or forfeiture of the Company’s corporate powers, rights or privileges, and (c) from ■commencing or maintaining against the Company or any officer, director or agent of the Company any prosecution for or on account of the exercise of such powers, rights or privileges; and (2) restraining the Company, its officers and directors from complying with the act or submitting to its enforcement. The complaint further prays that, by our final judgment, the act be declared unconstitutional, and that the purported suspension and forfeiture hereinabove referred to be declared void and of no effect

It does not appear that the defendant State officers are now assessing or attempting to assess, or intend to assess, any tax against the Company. There is, therefore, no present reason for enjoining such assessment. It does not appear that said officers are now collecting or attempting to collect, or intend to collect, any tax from the Company other than those claimed to be due and owing for the years ended September 30, 1935, and September 30, 1936. There is, therefore, no present reason from enjoining the collection of any other tax. It does not appear that said officers are now collecting or attempting to collect, or intend to collect, any tax from the Company for the years ended September 30, 1935, and September 30, 1936, otherwise than by said action No. 58345. There is, therefore, no present reason for enjoining collection by other means.

It does appear that, by said action No. 58345, said officers were, at the time this action was commenced, and are now, attempting to collect taxes from the Company for the years ended September 30, 1935, and September 30, 1936. Hence an injunction restraining such collection would constitute a stay of proceedings in a State court — a stay which, not being authorized by any law relating to proceedings in bankruptcy, is prohibited by § 265 of the Judicial Code, 28 U.S.C.A. § 379 . Hull v. Burr, 234 U.S. 712, 722-725 , 34 S.Ct. 892 , 58 L.Ed. 1557 ; Essanay Film Mfg. Co. v. Kane, 258 U.S. 358, 360-362 , 42 S. Ct. 318 , 66 L.Ed. 658 ; Kline v. Burke Construction Co., 260 U.S. 226, 228-235 , 43 S.Ct. 79 , 67 L.Ed. 226 , 24 A.L.R. 1077 ; Lion Bonding & Surety Co. v. Karatz, 262 U.S. 77, 88-90 , 43 S.Ct. 480 , 67 L.Ed. 871 ; Riehle v. Margolies, 279 U.S. 218, 223 , 49 S.Ct. 310 , 73 L.Ed. 669 ; Monamotor Oil Co. v. Johnson, 292 U.S. 86, 97 , 54 S.Ct. 575 , 78 L.Ed. 1141 ; Hill v. Martin, 296 U.S. 393, 403 , 56 S.Ct. 278 , 80 L.Ed. 293 ; Kohn v. Central Distributing Co., 306 U.S. 531, 534 , 59 S.Ct. 689 , 83 L.Ed. 965 ; Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 8 , 60 S.Ct. 215 , 84 L.Ed. 537 .

The prayer for an interlocutory injunction restraining the assessment and collection of taxes under the California Bank and Corporation Franchise Tax Act is accordingly denied.

It does not follow, however, that the action should be dismissed; for this is not merely an action to enjoin the assessment and collection of taxes. It is also an action to enjoin the wrongful acts which, according to the complaint, the State officers are committing and threatening to commit under color of § 32, supra. It appears from the complaint that, under color of § 32, said officers are asserting and. threatening to enforce a purported — but non-existent — suspension and forfeiture of the Company’s corporate powers, rights and privileges and are threatening to prosecute the Company’s officers, directors and agents if they, in its behalf, exercise or attempt to exercise any of said powers, rights or privileges, even to the extent of defending or attempting to defend said action No. 58345. It further appears that the threatened acts will, if not enjoined, preclude any such defense, and that, lacking such defense, the Company will be deprived of its property— $7,473.77, with interest and costs — without due process of law.

Thus the action is one of a civil nature in equity where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000 and arises under the Constitution of the United States. It is not an action to enjoin, suspend or restrain the enforcement, operation or execution of any order of an administrative hoard, commission or rate-making body, or to enjoin, suspend or restrain any action in compliance with any such order. Nor is it merely an action to enjoin, suspend or restrain the assessment, levy or collection of a tax. Clearly, therefore, this court has jurisdiction. Judicial Code § 24(1), 28 U.S.C.A. § 41 (1).

We next consider whether the wrongful acts which, according to the complaint, the State officers are committing and threatening to commit under color of § 32 should be enjoined. The application for such an injunction is opposed on the ground that the Company has an adequate remedy in the State courts. This contention — coming from an Attorney General who, according to the complaint, is threatening to prosecute any officer, director or agent of the Company who may, in its behalf, make any appearance in a State court — cannot be taken seriously. A “remedy” the invocation of which entails such consequences is no remedy at all.

It is no answer to say that the Company could, by paying the disputed taxes, obtain a “revivor” of its corporate powers, rights and privileges ; for it appears from the complaint that, in order to obtain money for that purpose, the Company would have to transact intrastate business in California, which, of course, it could only do through officers, directors or agents acting in its behalf. Any such transaction would constitute what the State officers contend is a misdemeanor, and would undoubtedly be prosecuted under § 32.

The State officers invoke the “familiar rule that courts of equity do not ordinarily restrain criminal prosecutions.” That rule, however, has its exceptions. Such an' exception exists where threatened prosecutions will, if not restrained, cause irreparable loss through the taking of property without due process of law. Ex parte Young, 209 U.S. 123, 161-168 , 28 S.Ct. 441 , 52 L.Ed. 714 , 13 L.R.A.,N.S. 932, 14 Ann.Cas. 764; Missouri Pacific Ry. Co. v. Tucker, 230 U.S. 340, 349 , 33 S.Ct. 961 , 57 L.Ed. 1507 ; Truax v. Raich, 239 U.S. 33, 37-39 , 36 S.Ct. 7 , 60 L.Ed. 131 , L.R.A.1916D, 545, Ann.Cas.1917B, 283; Terrace v. Thompson, 263 U.S. 197, 214-216 , 44 S.Ct. 15 , 68 L.Ed. 255 ; Packard v. Banton, 264 U.S. 140, 143 , 44 S.Ct. 257 , 68 L.Ed. 596 ; Cline v. Frink Dairy Co., 274 U.S. 445, 451, 452 , 47 S.Ct. 681 , 71 L.Ed. 1146 ; Gibbs v. Buck, 307 U.S. 66 , 59 S.Ct. 725 , 83 L.Ed. 1111 . The allegations of the complaint — here assumed to be true — bring this case within that exception.

In the circumstances here disclosed, refusal by the Company’s directors to defend said action No. 58345 or to bring an action in' the Company’s name in a State court of California was excusable. Not so their refusal to bring an action in this court; for, although they feared and were justified in fearing that any appearance by or for the Company in a State court action would subject them to prosecution, there was no ground for any such fear with respect to an action brought in this court. The Company’s interests clearly required that such an action be brought. Refusal to bring it constituted a breach of trust, which warranted the bringing of a stockholder’s action. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 318-323 , 56 S.Ct. 466 , 80 L.Ed. 688 .

This action, brought by plaintiff, is a stockholder’s action; for, although plaintiff is not a stockholder of the corporation (Birch Securities Company) in whose behalf the action is brought, he is a stockholder of that corporation’s sole stockholder (Birch Holding Company). The Holding Company and its directors having refused to act, plaintiff was and is entitled to maintain this action in behalf of the Securities Company. Piccard v. Sperry Corp., D.C.S.D.N.Y., 30 F.Supp. 171, 173 .

We conclude that the State officers’ motion to' dismiss the complaint should be denied, and that an interlocutory injunction should issue, restraining said officers from maintaining, enforcing, giving effect to, or attempting to maintain, enforce or give effect to, any suspension or forfeiture or purported suspension or forfeiture of the corporate powers, rights or privileges of Birch Securities Company; from prosecuting or threatening to prosecute any officer, director or agent of said Company for or on account of any exercise of said powers, rights or privileges; and from in any manner preventing or attempting to prevent said Company from commencing, maintaining or defending any action in any court of the State of California.

Such an injunction will dispel the fears which have caused the Company’s officers and directors to refrain from defending said action No. 58345 or transacting other business in its behalf. We assume that, being freed from such fears, the Company’s officers and directors will do their duty, and that no injunction against them or the Company will be necessary. The prayer for an interlocutory in junction against the Company, its officers and directors, is accordingly denied, without prejudice.

An order will be entered in accordance with this opinion.

Stats.1929, p. 19, as amended by Stats.1929, p. 1555; Stats.1931, pp. 60, 64, 2225; Stats.1933, pp. 40, 687, 692, 809; Stats.1935, pp. 959, 995, 1245; Stats.1937, pp. 85, 2324; Stats.1939, p. 2934. Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, Rule 12(b). This and other conclusions stated in the opinion are based on the assumption that the allegations of the complaint are true. Both the assumption and the conclusions are for present purposes only. Both, on final hearing, may prove unwarranted. Section 25, supra. In the complaint, the Company’s corporate powers, rights and privileges are spoken of as its “charter.” Under § 32, suspension or forfeiture occurs, if at all, by operation of law, not by any act of tlie Secretary of State. The Secretary merely issues a certificate evidencing such suspension or forfeiture, and his certificate is prima facie evidence only. Since the allegations of the complaint in No. 58345 are contrary to and inconsistent with those of the complaint in the action here pending, and since the latter are, for present purposes, presumed to be true, the former are, for present purposes, presumed to be false. Boyle v. Lakeview Creamery Co., 9 Cal.2d 16 , 68 P.2d 968 ; Ocean Park Bath House & Amusement Co. v. Pacific Auto Park Co., 37 Cal.App.2d 158 , 98 P.2d 1068 . Section 32, supra. M. Estelle O. Birch and R. R. Landrum voted for, and plaintiff against, the resolution refusing compliance with plaintiff’s demand. M. Estelle O. Birch and R. R. Landrum. M. Estelle C. Birch, R. R. Landrum and plaintiff. gee second paragraph of § 31, supra. “The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” Section 24 provides : “The district courts shall have original jurisdiction as follows: “(1) ** * * of all suits of a civil nature, at common law or in equity * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States. * * * Notwithstanding the foregoing provisions of this paragraph, no district court shall have jurisdiction of any suit to enjoin, suspend, or restrain the enforcement, operation, or execution of any order of an administrative board or commission of a State, or any rate-making body of any political subdivision thereof, or to enjoin, suspend, or restrain any action in compliance with any such order, where [certain conditions exist]. Notwithstanding the foregoing provisions of this paragraph, no district court shall have jurisdiction of any suit to enjoin, suspend, or restrain the assessment, levy, or collection of any tax imposed by or pursuant to the laws of any State where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State.” Such “revivors” are provided for in § 33 of the California Bank and Corporation Franchise Tax Act. Beal v. Missouri Pacific R. Corp., 312 U.S. 45, 49 , 61 S.Ct. 418, 420 , 85 L. Ed. —. See, also, Dodge v. Woolsey, 18 How. 331, 340-346 , 15 L.Ed. 401 ; Greenwood v. Union Freight R. Co., 105 U.S. 13, 16 , 26 L.Ed. 961 ; Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 553-554 , 15 S.Ct. 673 , 39 L.Ed. 759 ; Smyth v. Ames, 169 U.S. 466, 515-518 , 18 S. Ct. 418 , 42 L.Ed. 819 ; Cotting v. Kansas City Stock Yards Co., 183 U.S. 79, 112-113 , 22 S.Ct. 30 , 46 L.Ed. 92 ; Doctor v. Harrington, 196 U.S. 579, 587, 589 , 25 S.Ct. 355 , 49 L.Ed. 606 ; Delaware & Hudson Co. v. Albany & Susquehanna R. Co., 213 U.S. 435, 445-453 , 29 S.Ct. 540 , 53 L.Ed. 862 ; Brushaber v. Union Pacific R. Co., 240 U.S. 1, 9, 10, 36 S.Ct. 236 , 60 L.Ed. 493 , L.R.A.1917D, 414, Ann.Cas.1917B, 713; Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 200-202 , 41 S.Ct. 243 , 65 L.Ed. 577 ; Hill v. Wallace, 259 U.S. 44, 60-62 , 42 S.Ct. 453 , 66 L.Ed. 822 ; Carter v. Carter Coal Co., 298 U.S. 238, 286, 287 , 56 S.Ct. 855 , 80 L.Ed. 1160 .