Rogan

(concurring).

I agree with the opinion so far as its reasoning is based on a change in the tax legislation. I cannot agree that there is any distinction between these cases and the Fisher Flouring Mills Cases because in the Fisher Cases the District Court denied the temporary injunction, whereas in the present cases it was at first granted and later set aside. I am of the opinion that where a petition for a temporary injunction or supersedeas is addressed to this court, as in the Fisher Flouring Mills Cases and the present cases, for the purpose of preventing temporarily the collection of a tax which if collected would frustrate the consideration on the appeal proper of the merits of the claim for final injunctive relief, it is a matter of indifference whether a temporary injunction has or has not been denied by the District Court. To hold otherwise would make the trial court the court of final resort on the right to final injunctive relief in every case where it chooses not to restrain a single act which is about to be performed and will be performed pri- or to the hearing of the appeal. Upon a showing that the act has been performed, there is nothing left to enjoin, and the…

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…