Certiorari to review the action of the Industrial Accident Commission in mailing an award pursuant to the terms of section 58 of the Workmen’s Compensation, Insurance and Safety Act. (Stats. 1917, p. 870.)

Upon the first hearing in this court, the award was annulled upon the theory that said section 58 of the Workmen’s Compensation Act granted to citizens of this state a privilege which it denied to noncitizens, and was, therefore, violative of section 2 of article IV of the federal constitution. (Quong Ham Wah Co. v. Industrial Acc. Com., 59 Cal. Dec. 18.) Upon petition for rehearing the judgment of this court in the first instance was set aside and the cause set down for a hearing “for the purpose of considering the following questions:

In keeping with the order granting a rehearing, counsel for the respective parties briefed the case anew, painstakingly directing their efforts, in addition to a discussion of the points originally made, to an exhaustive exposition of the law appertaining to the subject matters designated in the order granting the rehearing. Therefore, aside from the recognition due the commendable efforts of counsel to facilitate the avowed purpose of the order, a discussion not only of the points originally made, but also of those designated in the order, would seem to be necessary to a decision of the case as now presented, even though the latter points were not necessarily involved in the case as prepared and presented in the first instance.

Section 58 of the Workmen’s Compensation Act reads as follows: “The commission shall have jurisdiction over all controversies arising out of injuries suffered without the territorial limits of this state in those cases where the injured employee is a resident of this state at the time of the injury and the contract of hire was made in this state, and any such employee or his dependents shall be entitled to the compensation or death benefits provided by this act.” (Stats. 1917, p. 870.)

Petitioner, the employer of the injured workman, attacks the validity of this statute on the ground that it violates section 2 of article IV of the constitution of the United States, which provides that “The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.” At the outset we are confronted again as we were in the first instance, with the contention that the petitioner cannot be heard to question the constitutionality of the statute in controversy because it is not one of the class claimed to be discriminated against by the statute. The provision of the Workmen’s Compensation Act now under attack is identical in phraseology with that considered by this court in Estabrook Co. v. Industrial Acc. Com., 177 Cal. 767 , [ 177 Pac. 848 ]. In that case this court expressly declared that it was not required to pass upon the constitutional question sought to be raised, and declined to discuss that question upon the merits because, as was held, “a contention that a statute denies equal rights and privileges by discriminating against persons and classes of persons may not be raised by one not belonging to the class alleged to be discriminated against.” (Estabrook Co. v. Industrial Acc. Com., supra) Such, undoubtedly, is the general rule, but the Estabrook case is fundamentally wrong if it is to be taken as definitely deciding that there are no exceptions to the general rule enunciated therein, and, if that be its purport, it should be flatly overruled, as was done by a majority of the court in the opinion rendered in the first instance in the instant case. (Quong Ham Wah Co. v. Industrial Acc. Com., supra.) Apparently, however, the court in the Estabrook case did no more than declare and apply the general rule that a statute purporting to make an unconstitutional discrimination between persons or classes of persons cannot be assailed on the ground of unconstitutionality by a person not belonging to the class discriminated against. This general rule, however, is not a hard-and-fast rule which must be arbitrarily and inflexibly applied to every situation involving the constitutionality of a statute, regardless of contingencies which may extend its operation beyond the confines of the classes which it was aimed to cover and control and which ultimately culminates in a grievance against persons not originally within the contemplation of the statute. In other words, the general rule under discussion and decision in the Estabrook ease must necessarily be subject to certain well-defined exceptions which, in so far as a perusal of the record in the Estabrook case shows, were not, in that case, pressed upon the attention of the court. Clearly, the petitioner in the instant case, has brought itself within the scope of one or more of the recognized exceptions to the general rule enunciated in the Estabrook case.

[1] Thus, where no member of a class alleged to be unlawfully discriminated against by a statute is in a position to raise the constitutional question, then any person affected by the application of the statute can urge its unconstitutionality. In Greene v. State, 83 Neb. 84 , [ 131 Am. St. Rep. 626 , 119 N. W. 6 ], the plaintiff in error was convicted under a statute making it a penal offense to commit “blackmail” against citizens or residents of the state of Nebraska. On appeal he urged that the statute was unconstitutional by reason of the fact that it operated to protect only citizens and residents of the state of Nebraska, and, therefore, unlawfully discriminated against the citizens and residents of all other states. In upholding this contention the court said: “We have not overlooked those cases which hold that a court will not listen to an objection made to the constitutionality of an act by a party whose right it does not affect, and who has, therefore, no interest in defeating it. Where the constitutional objection is that the penalties of the law are directed against a certain class without just reason for such discrimination, it is safe to leave the question of the constitutionality of such laws to be raised by the parties against whom the discrimination is made; and such have been the facts in all the eases we have examined laying down this rule. It is inapplicable to a ease where the vice of the law consists in an unwarranted discrimination between the individuals against whom the aggression thereby forbidden is committed. In such cases there is no way by which any person within the jurisdiction of the state denied the protection of its criminal law could bring the question before a court for its determination. If the legislature should enact a law amending our Criminal Code so that the crimes therein specified should be crimes only when committed against citizens or residents of the state, such an act would be absolutely void, but its invalidity could never be brought before the court by any person belonging to the classes thereby denied the protection of the criminal law. If we apply to such a law the rule that its constitutionality would only be considered when the objection was made by a party discriminated against, there could be no objection to its validity. When such a law is sought to be enforced against any person, whether belonging to the classes discriminated against or not, it should be declared void.”

Respondents suggest that the reasoning of this case is based upon an inaccurate conception of the nature and effect of an unconstitutionally discriminatory statute. Such statute is, they contend, not merely presumptively valid until it is set aside by the courts, but, unlike other statutes whicti. offend against the constitution, it is actually and legally valid until set aside. Were this view of the nature of a discriminatory statute to be accepted, the doctrine of Greene v. State, supra, might be paraphrased thus, that such a law is in fact valid as to all classes except the class discriminated against, unless that class is precluded from making a complaint, in which event the law is invalid as to every class. Such a doctrine would assuredly be strange and indefensible. The truth of the matter is, however, that a discriminatory law is, equally with the other laws offensive to the constitution, no law at all. (Buchanan v. Warley, 245 U. S. 60, 72 , [Ann. Cas. 1918A, 1201, L. R. A. 1918C, 210, 62 L. Ed. 149 , 38 Sup. Ct. Rep. 16].) Whatever validity it may be said to possess, it has such validity merely by virtue of the presumption of validity attaching to the acts of the legislative branch of the government. This presumption being rebuttable may be attacked by a litigant whenever it is material to his case unless he is prevented from doing so by some special exception. Such exceptions possess no peculiar sanctity and invest the law with no actual validity; they should naturally be confined by the limits of the reasons which occasioned their adoption and should give way to considerations of policy paramount to those reasons. Such an exception exists in the matter of attack upon the presumptive validity of a discriminatory statute and is to the effect that only a member of the class discriminated against can attack the presumption. The reason for the exception is to be found in the rule that the courts will consider questions of the constitutionality of statutes only when such consideration is a necessity in the determination of a real earnest and vital controversy between individuals. The exception, if literally accepted in its general form, is broader than the reason upon which it is based; but, independently of this consideration, it must yield to a policy paramount to the reason itself where no member of the class discriminated against can raise the question. The reason for the exception is in the nature of a rule developed for the regulation of the ultimate and supreme function of the courts to declare unconstitutional statutes to be void and of no effect; and such a regulatory rule must itself be subject to exception where it would otherwise operate to prevent altogether the exercise of this function, a function which it is the most solemn duty of the courts to exercise in a state governed under a written constitution which is the supreme law of the land. Where no member of a class discriminated against could ever attack the constitutionality of the discriminatory statute, the rule reserving to such persons the right to raise the constitutional question would totally prevent the exercise by the court of its function of passing upon that question and would place it in a position where it would for all time enforce rights and obligations created by an obviously void enactment. In such case any litigant to the determination of whose claim the constitutional question is fairly relevant should be permitted to raise the constitutional question. In the instant case, the Compensation Act does not give the commission jurisdiction over controversies arising out of injuries sustained abroad by workmen who are not residents of California. It is clear, therefore, that a nonresident would have no standing before the commission or before any court to make a claim under the act. And, not having jurisdiction over his injury, neither the commission nor the courts could entertain or adjudicate his claim for compensation nor the constitutional question involved. [2] Since, therefore, no member of the class discriminated against can ever raise the constitutional question, the petitioner is entitled to assail the constitutionality of the statute, since a determination of that question is clearly relevant in determining its rights herein.

Moreover, the fact that the constitutional rights of petitioner are directly affected by the statute here in question shows that the determination of the constitutionality of a discriminatory statute may be a necessity in the determination of a real and vital controversy between parties neither one of whom is a member of the class discriminated' against, and that, therefore, the general rule that only members of the unfavored class may attack the enactment is broader than the reason upon which it is based. In this behalf respondents suggest that the cases indicate that the constitutionality of a discriminatory statute can be raised only by one injured by the discrimination and in no case by one whose constitutional or other rights are injured by the legislation. A careful analysis of the cases presented fails to support this theory. Moreover, the supreme court of the United States has announced and acted upon the contrary rule in Buchanan v. Warley, supra, a decision which is precisely in .point in the instant case. In that case a vendor of land, a white man, sued to compel the vendee, a colored person, to receive and pay for a certain parcel of land which he had agreed to buy. Defendant had judgment in the lower court solely because of the effect of an ordinance making it illegal for colored persons to reside upon the property-in question. Plaintiff contended that the ordinance was unconstitutional for the reason that persons of color were unlawfully discriminated against. His right to assail the statute on the ground stated was questioned on the theory that he was not a member of the class discriminated against. The court clearly recognized, as it has done both in earlier and in subsequent cases, that in general one cannot assail the constitutionality of a statute in reliance upon the grievance of another, but it pointed out that while plaintiff had no grievance by reason of the discrimination, he had a grievance by reason of the legislation which by narrowing the market for his land deprived him of property, such deprivation being without due process of law in event the statute was for any reason unconstitutional. The court proceeded, therefore, to consider the merits of the constitutional question of discrimination. That case is precisely in point here, for, in the instant case, while petitioner has no grievance by reason of any discrimination, it has a grievance by reason of the legislation which, by imposing upon it the liability of an insurer for certain classes of its employees, operates to deprive it of property, such deprivation being without due process of law in event the statute is for any reason unconstitutional. The constitutional question of discrimination must therefore be discussed and decided.

[3] Section 58 of the Workmen’s Compensation, Insurance and Safety Act of 1917 restricts the right to claim the benefit of the act in the case of injuries suffered abroad to employees who are residents of California at the time of the injury. Since the act assumes that at the time of the injury the employee will be beyond the boundaries of the state, the word “residents” must necessarily have been used to designate “persons domiciled in” California. Citizens of the United States domiciled in California are citizens of the state. (Pol. Code, sec. 51.) The benefits of the act are, therefore, extended solely to citizens of California and to aliens domiciled within the state. It follows that there is a direct discrimination against aliens not domiciled in California, with which we are not concerned, and against citizens of other states of the Union which, if without legal justification, renders the statute unconstitutional. (Blake v. McClung, 172 U. S. 239, 247 , [ 43 L. Ed. 432 , 19 Sup. Ct. Rep. 165; 176 U. S. 56, 67 , [ 44 L. Ed. 371 , 20 Sup. Ct. Rep. 307, see, also, Rose’s U. S. Notes].)

Respondents contend that the discrimination is justified upon the ground that the obligation imposed upon employers by the act is created as an incident to the status of master and servant, and is, therefore, an obligation which can be created only by the law of the place of injury or by the law of the place of the servant’s domicile. Were this reasoning sound it would follow that, in making the discrimination in section 58 of the act upon the basis of domicile, the legislature was merely recognizing a jurisdictional limit upon its power. Respondents’ theory is based, however, upon a mis conception of the nature of the statute and of the meaning of the term “extraterritorial” as that term is used in describing the operation of the statute.

The theory of territorial sovereignty has been too long established as a principle of international law to admit of question at this time. Eights created by one state may be recognized and enforced by another state at its pleasure, and likewise a status attached to a person by one state may be recognized by another state, into which that person may travel, at the pleasure of the latter state, but as law the mandates of the sovereign of a given state can have no effect beyond the territorial limits to which his rule is extended. When, therefore, it is said that a statute, such as the Workmen’s Compensation Act, has an extraterritorial effect, it cannot mean that the law does, or attempts to, create rights abroad; it can only mean that an act occurring beyond the geographical limits of the state is recognized as the basis for the creation, or condition for the enforcement, of a right created and enjoyed within this state. The power of an absolute sovereign to thus sanction the enforcement, within the territory subject to the jurisdiction of that sovereign, of rights based upon acts occurring abroad cannot be questioned upon the ground of any inherent deficiency. It is, therefore, a power which may be exercised by this state, subject only to the restrictions of the state and federal constitutions. We may assume, in accordance with the contention of respondents, that, if the imposition of the obligation to compensate a servant, not domiciled within the state, for injuries sustained without the geographical limits of the state were an attempt to create an obligation merely as an incident to a status, such legislation would conflict with well-defined legal principles. Whether such a law would amount to a mere regulation of status or to an expression of a positive duty the breach of which would be tantamount to a tort, it may be conceded that a law of that nature would not lie within the law-making province of a state which was neither the domicile of the servant nor the locus delicti. The effect and purpose of the act now under consideration, however, cannot be held to be the regulation of a status or imposition of a tort liability. It is true that the extension of the liability imposed by the act to acts occurring beyond the territorial limits of the state cannot be supported on the simple theory that the obligation, so imposed is, strictly speaking, purely a contractual liability, for the proposition that a compulsory statute is a contract has been definitely repudiated by this court. (North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1 , [L R. A. 1917E, 642, 162 Pac. 93 ].) But the statute which is now before us assumes to extend its effect only to those eases where the contract of hire was made in this state. [4] It is, therefore, not an attempt to create an obligation merely as an incident to a status but is, in form and substance, a genuine regulation of contracts subject to the sovereignty of the state. The liability which it imposes is, so to speak, in a class by itself, being neither strictly contractual nor delictual, and it may, for want of a better term, be described as quasi ex contractu. (Post v. Burger, 216 N. Y. 544, 550 , [Ann. Cas. 1916B, 158, 111 N. E. 351 ]; Berton v. Dry Dock Co., 219 Fed. 763 .) The contract creates a relationship under the sanction of the law and the same law attaches as an incident thereto an obligation to compensate for injuries sustained abroad amounting to a sort of compulsory insurance. The legislature may lawfully impose that right and duty upon those operating under a contract subject to the legislative power, and no principle of law is defeated by attaching to such, contracts the same duties and rights as incidents to acts abroad that are lawfully imposed as incidents to the same acts occurring within the geographical limits of the state. (Angell on Recovery Under Workmen’s Compensation Law for Injuries Abroad, 31 Harvard Law Review, 16; Smith v. Heine Safety Boiler Co., 224 N.Y. 9 , [Ann. Cas. 1918D, 316, 119 N.E. 878 ]; Jenkins v. T. Hogan & Sons, 177 App. Div. 36 , [ 163 N. Y. Supp. 707 ].)

It is at once apparent that the legislature has equal power to provide for the creation of a compulsory obligation to compensate for injury suffered elsewhere as a regulation of contracts subject to the sovereignty of the state whether the contracting employee be domiciled in this state or not. (Story on Conflict of Laws, 8th ed., p. 375; Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 416 , [Ann. Cas. 1917E, 390, 156 Pac. 491 ].) Since, therefore, the right is created only in favor of citizens of the state and domiciled aliens, there is a direct discrimination against citizens of sister states.

The right of the legislature to impose reasonable regulations upon contracts subject to its sovereignty is unquestioned. "When, however, the legislature attempts to provide that a substantial privilege shall be incident to certain contracts of employment when entered into in this state by citizens of this state and that that privilege shall not be incident to identical contracts of employment when entered into in this state by citizens of other states of our Union, the enactment is clearly in contravention of section 2 of article IV of the federal constitution. “Different states may have different policies, and the same state may have different policies at different times. But any policy the state may choose to adopt must operate in the same way on its own citizens and those of other states. The privileges which it affords to one class it must afford to the other. Any law by which privileges to begin actions in the courts are given to its own citizens and withheld from the citizens of other states is void, because in conflict with the supreme law of the land.” (Chambers v. Baltimore & O. R. Co., 217 U. S. 142 , [ 52 L. Ed. 143 , 28 Sup. Ct. Rep. 34, see, also, Rose’s U. S. Notes].) It is true that many procedural discriminations between citizens and noncitizens have been upheld, but the rule applied in such situations has no application where a substantial substantive right is granted to citizens and under like circumstances is denied to citizens of other states. The statute here in question provides for the creation within this state of a right to accident insurance as an incident to certain contracts of employment in favor of citizens and opens the doors of its courts and commissions to citizens to enable them to enforce that right. This right is not accorded to citizens of other states. A privilege and protection of the laws of a substantial nature is thereby accorded to citizens of this state and denied to citizens of other states. This is forbidden by the federal constitution. (Blake v. McClung, 172 U. S. 239 , [ 43 L. Ed. 432 , 19 Sup. Ct. Rep. 165, see, also, Rose’s U. S. Notes].)

The constitution provides that “The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.” The provision appears without qualification. Its effect is not limited to those cases where its operation will not interfere with the internal policy of the state or with considerations which appear to affect the general welfare. Its mandate is absolute. It is true that a state may, in the valid exercise of its police power, limit the right of individuals to engage in certain professions or callings. Such regulations will be upheld even though their effect is indirectly to place noncitizens at a disadvantage, but the regulation must be inherently reasonable. (Ex parte Spinney, 10 Nev. 323 ; La Tourette v. McMaster, 248 U. S. 465 , [ 63 L. Ed. 362 , 39 Sup. Ct. Rep. 160].) The principles applied in these cases cannot be invoked under the facts presented here. No reasonable ground can be found for the classification. Respondents make the contention that the court should uphold the right of the state to require compulsory compensation for its citizens alone, inasmuch as it is only citizens or their families who are likely to become a public charge upon the state as a result of injuries sustained abroad. The argument expresses a very excellent reason for requiring compulsory compensation for citizens, but it expresses no reason at all for denying the same right to citizens of other states. In the cases of which Ex parteSpinney and La Tourette v. McMaster, supra, are examples, restraints upon engaging in certain occupations which bore more heavily upon citizens of other states were upheld upon the ground that the public good required that the occupations in question be opened only to those having had business or professional experience within the state, the general safety and welfare necessitating the exclusion of others. In none of these cases was the rule sanctioned that a privilege could be granted to a citizen of one state and denied to citizens of other states, for the reason that public policy did not require that the privilege be extended to the latter class of persons. Such a rule would be manifestly unsound and altogether in conflict with the constitutional provision here in question. No consideration of public policy requires that citizens of sister states be excluded from the benefits of the act here under consideration. The fact that considerations of public policy do not affirmatively require the extension of the benefits in question to citizens of sister states as strongly as they require their extension to citizens of this state furnishes absolutely no sound reason for the exclusion of the former and affords no reasonable basis for the discrimination.

[5] It follows that the discrimination made in section 58 of the Workmen’s Compensation Act contravenes the provisions of the federal constitution.

[6] It is contended, however, and correctly, that the provisions of the federal constitution do not have the effect of rendering invalid that portion of the Workmen’s Compensation Act providing for an extension of its benefits to residents who are injured abroad, but that it allows this portion of the act to stand as effective and valid and automatically, and without regard to the intent of the state legislature, extends the benefits created by the act to nonresidents, or rather to such nonresidents as are citizens of sister states. In support of this contention respondents rely upon Estate of Johnson, 139 Cal. 532 , [ 96 Am. St. Rep. 161 , 73 Pac. 424 ], No good reason has been advanced for departing from the doctrine therein declared as follows: “It will be noted not only that the constitutional provision is not restrictive, but that it is neither penal nor prohibitory. It nowhere intimates that an immunity conferred upon citizens of a state, because not in terms conferred upon citizens of sister states, shall therefore be void. Some force might be given to such an argument were the constitutional provision couched in appropriate language for the purpose. If, for example, it had said, ‘No citizen of any state shall be granted any immunity not granted to every citizen of every state,' or had it begun its declaration by saying that ‘It shall be unlawful to grant to citizens of any state any privilege or immunity not granted to citizens of every state, ’ it might then have been argued that a legislative attempt so to do would be declared violative of the express mandate of the constitution, and therefore, void. But such is neither the scope, purpose, nor intent of the provision under consideration. It leaves to the state perfect freedom to grant such privileges to its citizens as it may see fit, but secures to the ¡ citizens of all the other states, by virtue of the constitutional enactment itself, the same rights, privileges, and immunities.; So that, in every state law conferring immunities and privileges upon citizens, the constitutional clause under consideration, ex proprio vigore, becomes an express part of such statute. . . . The constitution itself becomes a part of the law. And this, in giving operation to that constitutional provision, is what the courts have always done. They have never stricken down the immunity and the privilege which a state may have accorded to its own citizens. They have never annulled the exemption. They have always construed the law so as to relieve the citizens of other states, and place all upon equal footing.” This is in harmony with and declaratory of the principle laid down by the United States supreme court in the Slaughter-house Cases, 16 Wall. 36, 77 , [ 21 L. Ed. 394 , see, also, Rose’s U. S. Notes], in the following words: “The constitutional provision there alluded to did not create those rights which it called privileges and immunities of citizens of the states. . . . Nor did it profess to control the power of the state, governments over the rights of its own citizens. Its sole purpose was to declare to the several states that whatever rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your jurisdiction.”

The discrimination complained of in the instant case is to be found in the fact that the state statute under consideration confers upon the citizens of the state privileges and immunities which are not extended by the terms of the statute, either expressly or impliedly, to nonresidents of the state, and clearly the statute in question does not impose nor attempt to impose upon noncitizens of the state burdens or exactions not imposed upon citizens of the state. This difference is all-important in controlling the construction and application of that provision of the federal constitution which declares that “The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.” For, where a state endeavors to place a burden upon noncitizens of the state which is not put upon citizens of the state, obviously the effect of the federal constitutional provision is to abort the endeavor of the state. On the other hand, however, where a state by statute endeavors to confer, and does confer, upon its citizens privileges and immunities not accorded by the statute to citizens of other states, the federal constitution operates, by the very force of its own language, to place citizens of other states in the same category and upon the same footing as citizens of the state in so far as concerns the right to have and enjoy the privileges and immunities conferred by the state upon its own citizens. In other words, the federal constitutional provision was designed for the protection of noncitizens, and, therefore, in any given case calling for its application, the case and the application must be considered from the viewpoint and in the light of the welfare of the noncitizen. [7] Viewed in this light, it is clear that, when a state statute imposes a burden on a noncitizen which is not imposed on the citizen of the state, the noncitizen may have relief from the burden thus imposed by invoking the provision of the federal constitution for the nullification of the discriminatory legislation. But, when a privilege is granted to a citizen and withheld from a noncitizen, the latter finds relief in the provision of the federal constitution which, by operation of law, so to speak, extends the privilege to him. The obvious resulting difference in the operation and effect of the federal constitutional provision under discussion, is the paramount point of the decision in the Estate of Johnson, supra, and it cannot be said that the extension to noncitizens of a statutory privilege granted only to citizens is judicial legislation, for clearly it is the federal constitution itself, and not the courts, which declares that, if citizens of a state are by statute granted privileges and immunities, noncitizens of the state shall likewise be “entitled” to them. The case of Spraigue v. Thompson, 118 U. S. 90 , [ 30 L. Ed. 115 , 6 Sup. Ct. Rep. 988, see, also, Rose’s U. S. Notes], which enunciates the principle that the courts cannot eliminate a discriminatory statutory exception and thereby make the statute effective as to a class which the legislature did not have in mind, has application only to that class of eases where it is attempted by the state to put a burden upon nonresidents. That case has no application to the extension to nonresidents of a privilege granted to residents, and, apparently, has never been applied to the latter situation.

The very recent case of Travis v. Yale & Towne Mfg. Co., 252 U. S. 60, [ 64 L. Ed. 460 , 40 Sup. Ct. Rep. 228], is relied upon in support of the contention that Estate of Johnson, supra, has been overruled by the supreme court of the United States. At first blush this case would seem to weaken the ruling of this court in Estate of Johnson. However, upon a close analysis of the Travis case, it will be found that it in no wise affects the doctrine of Estate of Johnson. The facts of the former case, substantially stated, were that the state of New York had imposed an income tax upon residents and nonresidents, but granted an exemption to residents of the state on the first one thousand dollars of their incomes, and further provided that every “withholding agent” (including employers) should deduct and withhold two per centum from all salaries, wages, etc., payable to nonresidents, where the amount paid to any individual equaled or exceeded one thousand dollars in a year, and should pay the tax to the state controller. The court held in affirmance of the judgment of the district court of New.York made in the first instance, that in granting to residents exemptions denied to nonresidents the statute violated the provisions of section 2 of article IV of the federal constitution, but a careful reading of the decision in that case reveals the fact that the court did not hold that the entire statutory scheme involved in that case was altogether void and nugatory. That is to say, the court did not declare that the statute was invalid in so far as it related to the imposition of a tax which, when freed and cleared of the attempted unwarranted discriminations, operated uniformly upon residents and nonresidents alike. True it is the court did not, in holding the attempted discrimination unwarranted, declare in terms that the exemptions granted to residents should by the conjunctive operation of the state statute and the fundamental law of the land be extended to nonresidents, but in this behalf it is important to note that neither did the court decide that the statute' was wholly invalid, that is to say, that residents and nonresidents entirely escaped the burden of taxation because of the attempted discrimination. That it was not the purpose of the court to so declare is manifest, we think, by the decree rendered in the first instance by the United States district court of New York and affirmed by the supreme court of the United States.

That decree, although not set out in the opinion of the supreme court, is before us by the courtesy and consent of counsel for the respective parties in the instant case, and may, therefore, we take it, be rightly referred to in aid of the ascertainment of the scope and effect of the opinion of the supreme court. The decree mentioned does not, as counsel for the petitioner here contend, enjoin the state of New York from in any way collecting all or any part of the tax in question from nonresidents. While it does enjoin the collection of the state tax from the complainants who were the “withholding agents” and the source of the income upon which the tax was levied, nevertheless it does not purport to enjoin the collection of the tax, with the discriminations eliminated, directly from resident and nonresident taxpayers. In short, the decree and its affirmance indicate that the court intended to do no more than declare that the discrimination in the granting of exemptions to residents and denying them to nonresidents was, in the language of the supreme court itself, “an unwarranted denial to the citizens of Connecticut and New Jersey of the privileges and immunities enjoyed by the citizens of New York.” (Italics ours.) In other words, it was the denial to residents of other states of exemptions provided in the statute for residents of the state of New York which was declared to be invalidated by the provision of the federal constitution. Inasmuch as the court did not strike down the exemptions in so far as they applied to residents, it follows by necessary implication that, if the exemptions could not be denied to nonresidents and were still extant as to residents, they must be available to nonresidents. This conclusion is confirmed by a perusal of the opinion rendered in the first instance by the district court, where it was carefully said that: “Nothing herein ... is meant to be decided as to the validity of the statute so far as it relates to residents of the state of New York.” (Yale & Towne Mfg. Co. v. Travis, 262 Fed. 576 .) This can mean but one thing, and that is, that the act was valid as to residents and binding to the same extent, and only to the same extent, upon nonresident citizens of other states. While the opinion of the district court cannot, of course, control the interpretation to be put upon the opinion of the supreme court, nevertheless it is illuminating and persuasive when considered in conjunction with the unqualified affirmance by the court of last resort of the decree of the lower court, despite the limitations which the latter court explicitly put upon its judgment.

In any event, it cannot be said from anything contained, either expressly or impliedly, in the Travis decision that the court there went so far as to say that the act in its entirety was invalid and could not be enforced against residents of the state of New York. Therefore, it seems that the Travis case in no way contravenes the rule and the reason for the rule enunciated in Estate of Johnson, supra, and, bound as this court is by the authority of the decision in that case until definitely overruled by the supreme court of the United States, it must apply the rule thereof to the 'instant case. It follows that, despite the invalidity of the discrimination, the statute itself is valid and may be made ¡to apply uniformly to citizens of California and the citizens ¡of the other states.

The award is affirmed.

Lawlor, J., and Sloane, J., concurred.