Alaska Consol. Canneries v. Territory of Alaska

• Decision Date: 22 November 1926
• Docket Number: No. 4931.,4931.
• Citation: 16 F.2d 256
• Parties: ALASKA CONSOL. CANNERIES v. TERRITORY OF ALASKA.
• Court: U.S. Court of Appeals — Ninth Circuit

16 F.2d 256 (1926)

ALASKA CONSOL. CANNERIES v. TERRITORY OF ALASKA.

No. 4931.

Circuit Court of Appeals, Ninth Circuit.

November 22, 1926.

J. A. Hellenthal and S. Hellenthal, both of Juneau, Alaska, for plaintiff in error.

John Rustgard, Atty. Gen., of Alaska, for Territory of Alaska.

Before GILBERT and RUDKIN, Circuit Judges, and JAMES, District Judge.

RUDKIN, Circuit Judge.

This was an action to recover the balance due on certain license taxes imposed by the territory of Alaska, pursuant to chapter 101 of the Laws of 1923, on certain salmon canneries operated by the Alaska Consolidated Canneries. The act of 1923 amended two sections of a similar act of 1921 (chapter 31 of the Laws of 1921), and declared an emergency, so that a brief reference to the prior act becomes necessary to a proper understanding of the questions presented for decision.

Section 1 of the act of 1921 provided that any person, firm, or corporation prosecuting, or attempting to prosecute, certain lines of business, or who should employ certain appliances in the territory of Alaska, should apply for and obtain a license and pay for such license for the respective lines of business as therein provided. Then followed an enumeration of certain lines of business for which licenses were required and the amount of the license fee for each. Included in this enumeration was the business of salmon canning. The fee for the license was in some instances a fixed sum, but generally the amount of the tax depended upon the amount of the business transacted during the year, and was not ascertainable until the end of the year. To overcome this difficulty, section 2 of the act provided that, if the tax for the license applied for was a fixed sum, the amount of the license tax should accompany the application; but, if the amount of the tax was not a fixed sum, the applicant should state in his application that he agreed to pay the license tax, and would make a true return, and would pay to the treasurer such tax on or before the 15th of the next ensuing January.

Section 10 of the act declared all taxes levied pursuant thereto, together with penalties and accrued interest, a lien upon the real and personal property of the person, firm, or corporation liable therefor, paramount and superior to all mortgages, hypothecations, conveyances, and assignments. Section 13 repealed chapter 33 of the Session Laws of 1919, relating to the same subject, but with a saving clause providing that nothing therein contained should be construed to relieve any person, firm, or corporation from paying any tax, penalty, or interest accrued and owing under the provisions of the act repealed; but all such taxes, penalties, and interest should be paid, collected, and enforced in the same manner as the taxes provided for in the amendatory act. Section 14 provided as follows:

"Except as otherwise provided in this act, all licenses shall be issued for the calendar year, beginning on January 1st and ending on December 31st of each year, and where the tax is not a fixed sum, but is computed after the close of the year's business, it shall be computed on the basis of the business done during such calendar year, and all taxes for the current year shall be calculated upon the basis of the schedule adopted by this act."

Section 1 of the act of 1923 amended section 1 of the act of 1921 in certain respects not material here, aside from the fact that the license tax on the business of salmon canning was materially increased. Section 2 of the act of 1923 extended the lien provided for in section 10 of the former act to the real and personal property used with the permission of the owner thereof in prosecuting the various industries or lines of business on which the license tax was levied. As already stated, section 3 declared an emergency, and that the act should take effect from and after its passage and approval.

Prior to the passage of the act of 1923, the Alaska Consolidated Canneries obtained what is styled provisional licenses to carry on the business of canning salmon at its different canneries in the territory during the year 1923, and agreed that at the close of the year it would file or cause to be filed with the treasurer of the territory true returns of the business transacted under the authority of the licenses applied for and would pay to the territory the license taxes prescribed by law. The Consolidated Canneries paid all license taxes due the territory on the basis of the schedule contained in the act of 1921, but refused to pay the additional taxes imposed by the act of 1923.

This action was brought to recover the difference between the amount of the taxes based on the schedule of 1923 and the amount of the taxes based on the schedule of 1921. Judgment was entered in favor of the territory in the court below, and the defendant has sued out the present writ of error.

The plaintiff in error contends, first, that the Legislature of the territory lacked constitutional power to increase or change the amounts to be paid for licenses issued prior to the passage of the act of 1923; and, second, that the act of 1923 by its terms is not retroactive.

The first contention is without merit. "A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right; nor is it taxation. It has been held, however, that a license tax involves a contract obligation to pay the specified compensation for the privilege." 37 C. J. 168. "The amount of a license fee or tax ordinarily may be increased or decreased at any time in the discretion of the body imposing it. Where a city has full power to tax an occupation, it may increase the rate on a particular class of persons engaged therein at any time before the expiration of the period for the enforcement of the tax, even though such increase is made after the tax first levied has been paid. It has been held that the amount of the license fee may be increased pending an application for a license, and the applicant be compelled to pay the increased fee." Id. 189.

In Patton v. Brady, Executrix, 184 U. S. 608, 619, ...