On November 15, 1950, the appellants J. Elroy McCaw and John D. Keating began an action in the United States District Court for the Territory of Hawaii, against Torkel Westly, the then Tax Commissioner of the Territory of Hawaii. McCaw is a citizen and resident of the State of Washington. Keating is a citizen and resident of the State of Oregon. Since the commencement of the action, Earl W. Fase has succeeded Westly as Tax Commissioner.

In their complaint, the appellants attacked the validity and sought to enjoin the enforcement of a tax law, § 5455(d) of Chapter 101 of the Revised Laws of Hawaii, 1945. The challenge was based upon the ground that the law was unconstitutional as applied to the appellants, who are operating a radio station, KPOA, under a temporary license issued by the Federal Communications Commission, in that the tax on the gross receipts of the station was unconstitutional as a burden on commerce and an attempt to regulate and control an instrumentality of interstate commerce. Jurisdiction was invoked under 28 U.S.C. §§ 1331 , 1332 and 1337. Declaration of rights was also sought under 28 U.S.C. § 2201 .

The appellee filed a motion to dismiss and a motion for summary judgment. These were heard together with the appellants’ motion for a temporary injunction. On February 5, 1951, the Court entered its order dismissing the action without prejudice. In part it read:

In the oral ruling dated January 24, 1951, to which reference was made, the court stated, in effect, that while he had jurisdiction, he should not exercise it by reason of comity to the territorial courts:

In dismissing the action the trial court had in mind the principle declared in such cases as Matthews v. Rodgers, 1932, 284 U.S. 521 , 52 S.Ct. 217 , 76 L.Ed. 447 ; Great Lakes Dredge & Dock Co. v. Huffman, 1943, 319 U.S. 293, 300-301 , 63 S.Ct. 1070 , 87 L.Ed. 1407 ; Hillsborough Township v. Cromwell, 1946, 326 U.S. 620 , 66 S.Ct. 445 , 90 L.Ed. 358 , that suits to prevent the enforcement of a tax statute will not be entertained by the Federal courts when the statute has provided for payment under protest to be followed by an action in the State courts to recover the amount so paid.

This is an appeal from the judgment of dismissal. After the entry of this judgment, the appellants on March 21, 1951, paid the tax under protest. On May 3, 1951, they filed an action in the Circuit Court, First Judicial Circuit, pursuant to Section 1575 of the Revised Laws of Hawaii to recover the sum of $7,637.33 paid under protest. In the complaint they challenged the constitutionality of the statute upon the same grounds urged in the action from which this appeal is taken. Issue was joined by the Tax Commissioner. The case was tried without a jury. The territorial court, on January 28, 1953, made its finding holding the statute valid as applying only to the gross income of the business done by the appellants’ radio station in the territory.

On a writ of error the judgment of the Circuit Court was affirmed by the Supreme Court for the Territory of Hawaii on June 8, 1953. McCaw v. Fase, 1954, 40 Haw. 121 . An appeal was taken to this court on the same day. 28 U.S.C. § 1293 .

In an opinion filed today, 9 Cir., 216 F.2d 700 , the judgment of the Supreme Court of the Territory of Hawaii is affirmed and the contentions of unconstitutionality of the statute are rejected. So, whether the United States District Court in the present case was or was not justified in declining jurisdiction upon the grounds stated, or any other grounds, or whether the Johnson. Act, 28 U.S.C. § 1341 , does or does not apply to the Territory of Hawaii, is no longer a justiciable question, — for the entire appeal has become moot.

The appeal is therefore dismissed.