¶1Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, John MacC. Hudson, Howard P. Locke, and Joseph M. Jones, Sp. Assts. to the Atty. Gen., for petitioner.
¶2Thomas P. Slevin, of San Francisco, Cal., for respondent.
¶3Before WILBUR, MATHEWS, and HANEY, Circuit Judges.
¶5This is an appeal from the decision of the Board of Tax Appeals holding that the salary of the respondent as secretary of the board of park commissioners of the City and County of San Francisco, Cal., is exempt fom taxation by the government of the United States because it was money paid by a political subdivision of the state to an employe engaged in essential government functions of the City and County of San Francisco. The Board of Tax Appeals based its decision upon the holding of the Circuit Court of Appeals for the First Circuit in Commissioner v. Sherman, 69 F.(2d) 755, 759, wherein it was held that the creation and maintenance of public parks is a governmental function of the state. The Supreme Court of California in Kellar v. City of Los Angeles, 179 Cal. 605, 178 P. 505, held that the maintenance of parks in California is a governmental function. It is urged that this latter decision is not binding on the federal courts, although the problem to be determined is whether or not the particular function involved is a governmental function of the state. Assuming, without deciding, that the California decision is not binding upon this court, we are in accord with the conclusion reached both by the California court in Kellar v. City of Los Angeles, supra, and by the Circuit Court of Appeals for the First Circuit in Commissioner v. Sherman, supra. Childers v. Commissioner of Int. Rev., (C.C.A.9), 80 F.(2d) 27; Commissioner v. Harlan (C.C.A.9) 80 F.(2d) 660; Devlin v. Commissioner, 82 F.(2d) 731, filed March 16, 1936 by this court.
¶6The order of the Board of Tax Appeals is affirmed.