Alaska Fish Salting Co v. Smith

• Court: U.S. Supreme Court
• Writing for the Court: HOLMES
• Citation: Alaska Fish Salting Co v. Smith, 255 U.S. 44, 41 S.Ct. 219, 65 L.Ed. 489 (1921)
• Decision Date: 31 January 1921
• Docket Number: No. 166,BY-PRODUCTS,166
• Parties: ALASKA FISH SALTING &CO. v. SMITH

255 U.S. 44

41 S.Ct. 219

65 L.Ed. 489

ALASKA FISH SALTING & BY-PRODUCTS CO.

v SMITH.

No. 166.

Argued Jan. 20 and 21, 1921.

Decided Jan. 31, 1921.

Messrs. R. E. Robertson, of Juneau, Alaska, and Harvey M. Friend, of Washington, D. C., for plaintiff in error.

[Argument of Counsel from pages 45-47 intentionally omitted] Mr. J. C. Murphy, of Anchorage, Alaska, for defendant in error.

Mr. Justice HOLMES delivered the opinion of the Court.

This is an action to recover the amount of taxes levied under statutes of Alaska which the plaintiff alleges to be contrary to the Act of Congress of August 24, 1912, c. 387, § 3, 37 Stat. 512 (Comp. St. § 3530), creating a legislative assembly in the Territory of Alaska, and to the Constitution of the United States. Judgment was given for the defendant upon demurrer to the complaint, the parties agreeing that the foregoing grounds of recovery were the only matters in dispute. The statutes attacked, viz.: May 1, 1913 (Laws 1913, c. 52), April 29, 1915 (Laws 1915, c. 76), and May 3, 1917 (Laws 1917, c. 74), levy license taxes of two dollars a barrel and two dollars a ton respectively, upon persons manufacturing fish oil, fertilizer and fish meal in whole or in part from herring. The Act of Congress after giving effect to the Constitution and laws of the United States in the Territory provides that the authority therein granted to the legislature 'to alter, amend, modify, and repeal laws in force in Alaska shall not extend to the * * * fish * * * laws * * * of the United States applicable to Alaska, or to the laws of the United States providing for taxes on business and trade. * * * Provided, further, that this provision shall not operate to prevent the legislature from imposing other and additional taxes or licenses.' Some reliance is placed also upon section 9 (section 3536) that all taxes shall be uniform upon the same class of subjects, &c., and that no tax shall be levied for territorial purposes in excess of one per centum upon the assessed valuation of property therein in any one year.

The complaint alleges that the tax will prohibit and confiscate the plaintiff's business, which is that of manufacturing fish oil, fertilizer, fish meal and by-products from herring either in whole or in part; that the tax unreasonably discriminates against the plaintiff, as it levies no tax upon the producers of fish oil, &c., from other fish, and is otherwise extortionate; and that it contravenes the Act of Congress in lack of uniformity and in exceeding one per centum of the actual value of the plaintiff's property. The prophecies of destruction and the allegations of discrimination as compared with similar manufactures from salmon are denied by the Attorney General for Alaska, the latter denial being based upon a comparison of the statutes which of course is open. We are content however to assume for the purposes of decision that, not to speak of other licenses, the questioned Acts do bear more heavily upon the use of herring for oil and fertilizer than they do upon the use of other fish. But there is nothing in the Constitution to hinder that. If Alaska deems it for its welfare to discourage the destruction of herring for manure and to preserve them for food for man or for salmon, and to that end imposes a greater tax upon that part of the plaintiff's industry than upon similar use of other fish or of the offal of salmon, it hardly can be said to be contravening a Constitution that has known protective tariffs for a hundred years. Rast v. Van Deman & Lewis Co., 240 U. S. 342, 357, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455. Even if the tax should destroy a business it would not be made invalid or require compensation upon that ground alone. Those who enter upon a business take that risk. McCray v. United States, 195 U. S. 27, 24 Sup. Ct. 769, 49 L. Ed. 78, 1 Ann. Cas. 561. See Quong Wing v. Kirkendall, 223 U. S. 59, 32 Sup. Ct. 192, 56 L. Ed. 350; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467, 482, 31 Sup. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671. We need not consider whether abuses of the power...