The opinion
CUSHMAN, District Judge
(dissenting).
For the reasons stated and conclusions reached in the opinion filed herein August 24, 1936, I dissent from the opinion of the majority of the court, in so far as it holds valid the tax upon gross proceeds of retail sales made and gross income of business carried on within Rainier National Park pursuant to a service which plaintiff had obligated itself to the United States to perform in the accomplishment of the Government’s purpose with relation to Rainier National Park.
The Supreme Court has, since the filing of such first opinion, again considered the question of taxation by a state of an instrumentality employed by the United States in the accomplishment of a governmental purpose. People of State of New York ex rel. Rogers v. Mark Graves et al., 57 S.Ct. 269 , 81 L.Ed. -, decided January 4, 1937.
Mid-Northern Oil Co. v. Walker, Treas. of Montana, 268 U.S. 45 , 45 S.Ct. 440 , 69 L.Ed. 841 , which the majority in the present case hold to be controlling, was a case where the congressional enactment construed provided: “Nothing in this act [said sections] shall be construed or held to affect the rights of the States or other *489 local authority to exercise any rights which they may have, including the right to levy and collect taxes upon * * * output of mines.” ( 41 Stat. 450 , 30 U.S.C. A. § 189).
The tax involved was one upon ‘the “total gross value of crude oil produced In so far as the thing made subject to the tax was concerned, the language of the statute in that case was more express and specific than the words now construed, as they occur in section 1, c. 92, p. 192, Session Laws of the State of Washington 1901 and section 1 of the Act of June 30, 1916, c. 197, 39 Stat. 244 (title 16 U.S.C.A. § 95 ), which words are: “and saving further to the said State the right to tax persons and corporations, their franchises and property, on the lands included in said park.”
The foregoing words of these statutes should, if possible, be construed so as not to confer upon the state the power to tax a governmental agency, which can be done by construing them as referring to those “persons, corporations, their franchises and property” not primarily engaged in the accomplishment of the Government’s purpose of devoting the park to enjoyment by the public “in such manner and by such means as will conserve the scenery, natural and historic objects therein and leave them unimpaired for the enjoyment of future generations.” So construed, effect is given to the rule of statutory construction that the United States is not bound by the general language of a statute — that the sovereign authority is not bound by statute unless named therein, if the statute tends to restrain the powers, rights or interests of the sovereign. United States v. Herron, 20 Wall. (87 U.S.) 251, 262, 263, 22 L.Ed. 275 ; Guarantee Title & Trust Co. v. Title Guaranty Co., 224 U.S. 152 , 32 S.Ct. 457 , 56 L.Ed. 706 .
The case of Mid-Northern Oil Co. v. Walker, Treas. of Montana, 268 U.S. 45 , 45 S.Ct. 440 , 69 L.Ed. 841 , is further to be distinguished in that in that case there was no contention as to the thing which Congress had consented should be taxed. The controversy was over the manner in which it should be taxed. The consent of the Goveimment having been expressly given to the taxation of this thing — the output of mines — there being no question made but that "crude oil produced” was such “output” (see title 30 U.S.C.A. § 101 ), there was no reason for construing the statute as to the manner of taxing such thing in any different manner from that which would otherwise obtain, for, other than through such thing, there was no relation in any way to a governmental agency.