The opinion
HUTCHESON, Circuit Judge
(dissenting).
On the former appeal of this cause I dissented 1 from the majority view that the 14-cent per ticket the athletic associations had collected from purchasers of admission tickets to intercollegiate football games, in addition to the $1.36 charged for admission, had not been collected as a tax, and that a temporary injunction would lie to prevent its summary collection. I thought then, I *894 think now, that the money was collected as taxes, and that without regard to whether the government or the Regents 'should he ultimately declared entitled to it, section 1543, 26 U.S.C.A., forbade the issuance of an injunction to restrain its collection. I therefore dissent from the conclusion of the majority on this appeal that the former opinion is the law of the case, and that injunction is an available remedy.
1 dissent, too, from their conclusion that the federal tax on admissions to “any athletic game or exhibition the proceeds of which inure wholly or partly to the benefit of any college or university,” may not be lawfully laid upon and collected from persons admitted to intercollegiate football games conducted under the auspices of the athletic associations of the University of Georgia and of Georgia Tech; that the government has no interest in or right to have an accounting for the moneys collect■ed from ticket purchasers under the form of receipt employed in this case, and plaintiff is therefore entitled to a permanent injunction.
I subscribe fully to the views the majority opinion advances, that the fostering and support by the State of higher education, by the establishment and maintenance of State universities for instruction in the higher branches of learning, is not only a legitimate, but an essential, governmental function in a republic like ours. I particularly subscribe to all that is said about the distinguished part in furthering this ideal which Georgia and Georgians early took, and have persistently sustained. I could hot do otherwise, for it was a Georgian, Mirabeau B. Lamar, who, by his message 2 to the first Congress of the Republic of Texas, in 1838, was instrumental in having set apart enormous grants of public lands for the maintenance and establishment of a “University of the first class.” In that message he pointed out, with an eloquence which has seldom been equalled and never surpassed, the. necessity to democratic institutions of the furtherance, not only of common schools, but of higher education. His inspired words, “Cultivated mind is the guardian genius of Democracy; and while guided and controlled by virtue, the noblest attribute of man. It is the only dictator that free men acknowledge, the only security that freedom desires,” are the watchwords of the University system of Texas, and through its persuasive influence, of the whole educational system of that State.
I have no difficulty, either, in going along with my associates in their expressed view that general provision for instruction in, and the practice of, athletics as a formal feature of college education may be justly regarded as proper, and may be legitimately provided for out of public funds.
My associates have referred to the German Gymnasia, the Greek Olympics, the Roman games, to which catalogue might well be added the games of England’s public schools and the boat races on the Thames. They have insisted that public contests are not an abuse of physical education, and that contests between .colleges in athletics are only a superlative degree of the public exhibition. With all of these notions I fully agree, but with the greatest deference I submit that there is a complete non sequitur between these positions and the conclusions the majority draw: (1) That the staging and conduct of the colorful spectacles which burst into bloom in stadiums all over America in October and November of each year are a part of the governmental function of education in a State university; and (2) that, if their staging and conduct ■ are matters of governmental concern, the collection from the attending public of an admissions tax of 14 cents a person, is such a direct burden upon the State governments as that within the applicable decisions, the government of the United States may not require the athletic asso *895 ciations which conduct the enterprises, to collect the tax for them from purchasers attending the games.
My associates, apparently to their own satisfaction, have rationalized themselves into the frame of mind to believe and to say that these modern gladiatorial spectacles, conducted in vast and costly amphitheaters, for the excitement and amusement of the American public, all present being keyed to a pitch and under a tension wholly foreign to that ordinarily associated with academic and educational pursuits, are an essential part of higher education in Georgia, and, as such, a governmental function of that State. They have not rationalized me into that frame of mind; I cannot rationalize myself into it. It seems to me that the mental processes by which the din and delight, the struggle and stress, the flying arms and legs, the alternate tangles and extrications, and all the heady actions of an intercollegiate football game, are envisioned as higher education, are a “reductio ad absurdum” of even modern higher educational theory. They seem to me in the slangy but expressive vernacular common in the stadiums, to “take higher education for a ride.”
The writer of the majority opinion, himself a distinguished product of Georgia’s educational system in the days when, as he admits, field day, and not football day, was the day of glory for athletes at the University, and education was education, points with pardonable pride to Georgia’s interest in higher education, early awakened, and persistently maintained. He justly points out, too, that physical training may properly form a part of university life. With deference, he has not pointed, nor do I think he can point, to any practice, precedent, or principle upon the basis of which it can be successfully maintained that the conduct of intercollegiate football games for profit, as is now the case in the football season, may be legitimately said to be a governmental function or activity of any kind, least of all a function of higher education. I think for us to hold otherwise would be having ears, to hear not, and having eyes, to close them to what all but us can see, and this judges may not do.
In the view I take of the matter, the precise setup of a particular State University is unimportant. When the vast spectacular program of fall meetings, of which we take judicial notice, is considered, it is quite evident that from the time the football season opens in early fall, until it closes at Thanksgiving, with its post season spectacles in the Rose Bowl, the Sugar Bowl, the Orange Bowl, the Cotton Bowl, and other bowls galore, it presents a vast hippodrome, colorfully staged and segmentally divided into rings upon rings, where here one set of gladiators, there another, meet and engage in deeds of derringdo, to the frantic cheering of assembled thousands of half-mad spectators. More, on game days hundreds of thousands of radios all over the United States pick up the dramatic voices of announcers, and a portion of every program in every moving picture theater during the whole season carries on.
In such view, particular arrangements of particular colleges for obtaining performers in this vast series of spectacles, as well as particular arrangements each makes for drawing public interest and public money, fade into insignificance.
We judicially know that in the football season, from coast to coast, from Lakes to Gulf, these gigantic, commercialized activities, these intercollegiate football games, absorb the public attention, priming in interest any other form of public spectacle. We judicially know that during that period the members of the football team, at Tech there were fifty, at Georgia about the same, become men set apart. They have their own training table, their own rules. Glorified men at arms, they go abroad, the fighting men of their universities, bringing to-it, if they have been well scouted, garnered and trained, fame, honor, and money galore. If they have not been, no fame, no honor, and a much smaller portion of the gate receipts.
We judicially know that in these games there is a guarantee and division of gate-receipts between athletic associations of the respective colleges, and that the greater the fame and prowess of the teams, the greater the gate receipts. We judicially know that the size of the gate receipts has no relation whatever to the educational standing of the colleges, or to that of the members of the teams, but entirely to the skill and. prowess of the teams in ground gaining, and to that of the individual members, the combatants on the field, in running, blocking, tackling, interfering, kicking, passing, and receiving.
*896 We judicially know that there is quite a difference of opinion among educators and those interested in education, as to whether intercollegiate football games, as they are conducted, are in danger of degenerating into a racket, or have justified themselves. We judicially know, too, that there is no difference of 'informed, academic, as opposed to legalistic opinion anywhere, upon the proposition that intercollegiate games in themselves are not part of higher education, and that it is only by dint of the greatest struggles and precautions, on the part of the various conferences which govern these football games, directed toward maintaining scholastic standing and preventing professionalism in too aggravated a form, that they are conducted withoüt great injúry to the cause of higher education. But we know, too, that it is thought by many that, so managed and conducted, the money and athletic prestige gained for particular colleges by outstanding teams make the games worth the candle.
When the matters of which we take judicial notice are put to one side, and this particular record is examined, it is found to be not only teeming with evidence as to, but crying out that, the prime reason and incentive for the conduct of intercollegiate football games on the scale and in the manner on which they are being conducted by the Georgia and Tech Athletic Associations is a financial one, 3 and that, without the financial returns from them, the games, and the stadiums in which they are played, indeed the department of physical education itself, would vanish like the mists of the morning. 4
When it is considered that the record shows that these great educational exhibitions of the higher learning, these intercollegiate football games take in, for Georgia, in an ordinary season of two months, nearly $75,000, and more than that for Tech, and of course substantially the same amount under their guarantees for the teams with which these teams compete, 5 when, in short, it is considered that in September and *897 October of each year these two colleges take from the public on admissions tickets, to be divided between themselves and their competitors, over $300,000 a year, it is at once seen that if. this is education, truly education pays.
My associates seem to concede that, if the athletic associations employed or paid men to play upon the teams, if, in short, the teams and the games were not just the by-product of the higher educational process as it operates on the general Georgia student body, this would deprive the games of their higher educational quality, and subj ect the patrons to tax.
I cannot see this distinction. But, if it is a sound one, I think the record in this case shows sufficiently to bring it under the rule thus set, that the football squad is a special unit in the University, provided for in large part by scholarships and allowances built up and maintained by special scouting, 6 and that the intercollegiate activities of this- picked and special group have no connection whatever with either the department of physical education, or the pursuit of higher learning. 7 Certainly, if they have any connection, it is so remote and indirect as that the governmental immunity which might be extended to the activities of the department of physical education as a part of higher learning, cannot extend to the public exhibitions of the prowess of college football teams. These exhibitions are, in my opinion, as little connected with governmental function, as indirect and remote, as would be the public contests of football teams recruited from employees of the various instrumentalities of the federal government, beginning with national banks, listed by appellee on page 15 of it§ brief. I think no one would claim that admissions to games in which football teams maintained by these various governmental activities competed for the public amusement, and the glory and financial advantage of the athletic associations of these institutions, would be exempt from a State admissions tax because the games were part of a governmental function. I cannot see how any better contention could be made against the federal tax for teams maintained by athletic associations of State schools.
Entertaining these views as to the purely business nature and character, from the standpoint of the promoters, of these exhibitions as to which the government lays a tax upon the spectators, it is natural that I should find myself unable to agree *898 that here is education in its higher forms, here a governmental enterprise.
But, if I could agree with my associates that there is more of higher education here than meets - the eye and ear, and that, though hidden from me, there is a subtle connection between these games and the governmental functiori, I still cannot agree with them that the tax is not collectible. For it seems quite plain to me that the collection from the attending public of an admissions tax of 14 cents a person is not such a direct burden upon the State government as that within the applicable decisions the government of the United States may not require the athletic associations which conduct the enterprises to collect the tax for them from purchasers attending the games.
At the risk of weakening the force of my dissent here, by taking broader ground than necessary, I might as well say that I have long believed and unsuccessfully asserted, 8 that claims of governmental immunity from taxation have in the past been too liberally granted. In my view, the test of the constitutionality of a State or Federal tax upon the operations of the United States or of the States, or the means chosen for the execution of the powers of either government, should be whether the taxing statute discriminates against the government affected, and in favor of other taxpayers. But it is by no means necessary for me to go that far here. For under the law as it is now settled by the decisions, particularly that of the United States Supreme Court in James v. Dravo Contracting Company, 58 S.Ct. 208 , 82 L.Ed. -, delivered December 6, 1937, the levying of a tax not on the State, the Universities, nor on the athletic associations, but on and to be paid by the purchasers of tickets, is not and cannot be a direct burden upon a governmental function of the State of Georgia. Indeed, it falls so indirectly and so remotely as that it cannot really be regarded in law as any burden at all. If a State tax on the gross receipts of a contractor derived from a contract between him and the United States, for the construction of locks and dams in a navigable stream, is not invalid as laying a burden upon the operations of the Federal government, certainly a federal tax upon purchasers of tickets to a football game cannot be invalid as imposing a burden upon the operations of the State government.
If the Georgia and Tech Athletic Associations competed only with each other or with other State institutions, in public football exhibitions, there would still be no reason, in my opinion, for a holding that they could not be required to collect an admissions tax from purchasers of tickets to them.
When it is considered that hundreds of athletic associations of colleges and universities not conducted by States are engaged in these competitions for public favor, and that their spectators are subject to the same kind of tax, and when it is further considered that such athletic, associations take part in the very games Georgia and Tech conduct, and part of the proceeds goes to them, the claim of governmental immunity from a tax which falls uniformly on all colleges taking part in this spectacular seasonal bid for public patronage and favor seems to me strained and farfetched indeed.
I respectfully dissent.
5 Cir., 81 F.2d 577 , at page 583.
* * * “It will be my leading policy * * * to lay the foundations for those higher institutions for moral and mental culture without which no government on democratic principles can prosper, nor the people long preserve their liberties. * * * If we desire to establish a republican government on a broad and permanent basis, it will become our duty to adopt a comprehensive and well regulated system of mental and moral culture. Education is a subject in which ■every citizen, and especially every parent, feels a deep and lively concern. It is one in which no jarring interests are involved, and no acrimonious political feelings are excited; for its benefits are so universal that all parties are cordially united in advancing it.
“It is admitted by all that cultivated mind is the guardian genius of Democracy, and while guided and controlled by virtue, the noblest attribute of man. It is the only dictator that free men acknowledge, and the only security that freedom desires.”
“Our business manager fixes the price at which we sell football tickets to any particular game. After a period of years we know about what the expenses are,what our tickets should be to meet them, that is how, we fix the admissions to the games. When I refer to expenses I mean the entire expenses of maintaining an athletic department and staging the games, for the purchase of lands, for additional fields, for the maintenance of fields, all the salaries of coaches and instructors come out of the proceeds of the funds of the Athletic Associations. The total receipts from Georgia Tech appeared to be in excess of $127,000 for the fall of 1934. This is comparable to the receipts from year to year from that source, except the boom years 1928 and 1929, -the period of our greatest receipts. Our receipts were increased a great deal by $50,000 from the Rose Bowl game in California in 1929. In that year the school had an excellent team and the total receipts from football in the year were about $200,000.”
One of the witnesses for the University of Georgia, when questioned “What is there about the Department of Physical Education as affects participation in athletic sports that is different from any other department in the University,” answered:
“The only difference is that if it were not for the receipts from athletics there would be none. No appropriation is made by the State Legislature to go to the Department of Physical Education. If athletic contests were not carried on, we would have no Department of Physical Education.”
A witness for Georgia Tech testified: “We had a baseball team in 1934. We did not have one in 1935. As to the purpose of giving up baseball activities in 1935, college baseball has fallen out. We substituted soft ball because instead of having, two teams playing hard ball, we could have 30 to 50 teams playing soft ball. There is no student interest in college baseball. There is no public interest whatever in college baseball.”
The President of the University of Georgia testified that they had a college baseball team but it did not pay for itself. “They had a college track team and it did not pay for itself. As to all of these intercollegiate sports that we maintain, they do not pay for themselves^ only football. That is the present public taste. I can remember the time when football did not support itself, and baseball paid the best of all the sports carried on. It is only since the world war, when people became interested in bodily contact sports, that it has been on a paying basis.
“I regret to say that we could not ' maintain the physical education we have in athletics without charging for football games.”
The record does not show the amounts of these guarantees, but the audit contains a statement that, instead of showing these guarantees in the total amount collected and then deducting them, only the net amounts are given.
Professor Armstrong, Associate Professor of History and Económica, and Chairman of the Athletic Association, testified that at Georgia Tech they had an interest in getting good players. The general plan of Tech is to find out about them; send out questionnaires inquiring whether they are interested in football, whether they need scholarship aid; naturally coaches are interested in getting good players.
It was testified that while the athletic association does not have a department of physical education, in which a degree is granted, it contributed in 1934 around $7,500 to the general scholarship fund.
To the question of the court, “Is any such elaborate and careful effort made to ascertain the availability of students particularly qualified along intellectual lines in history, engineering or1 surveying, or the like?” Dr. Armstrong answered, “No, we don’t make any particular effort to find these, but if a principal is as much interested in his honor students as a coach is interested in his high school honor students, he can get the same attention as a boy that is playing football.”
“Q. Ah a matter of actual practice and experience, that is not done? A. I am afraid the principals do not take the same interest.
“Q. As I understand it, all of the effort is made toward those who have physical prowess? A. Tl*at is true of the Physical Educational Department.”
“Q. Take the Department of History. Have they a separate business manager, coach, and do they keep a separate set of books, and do they have people who are employed to coach and train up special students, and do they have special ones to go out and find these students? A. No sir; there is no other.department in the college that that applies to other than the Social; that is not a strictly educational department.”
“Football is ¡not a required subject for a degree for a student who is enrolled in the Department of Physical Education. Any student who makes the Varsity Team in Georgia or Georgia Tech and goes out and plays in either of these activities, is merely doing it voluntarily. He gets no credit for this in the University of Georgia, and in Georgia Tech there is no Department of Physical Education in which a degree is granted.”
“Degrees in the Department of Physical Education are given to those who complete the course for teaching physical education.”
Texas Co. v. Carmichael, D.C., 13 F.Supp. 242, 246 ; Therrell v. Commissioner, 5 Cir., 88 F.2d 869, 872 .