The opinion
EDGERTON, Circuit Judge
(dissenting in No. 9833).
I think the statute and its histoty show ' that Congress intends state banks that do a savings business to- be taxed under § 1703-although they also do a commercial business, but intends national banks, which are expressly named in § 1701, to be taxed there although they also1 do a savings business.
The power of Congress to tax state banks and national banks differently seems to me, as plain as the power to¡ tax corporations and partnerships differently. And even if the constitutionality of the statute were not plain it could not now be drawn in question in this court of the United States, since there has been no compliance with Title 28,. U.SC.A. § 2403, which requires that “In1 any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is riot a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality.” I think the decisions of the Board of Tax Appeals in all of these cases should be affirmed.