Alaska Pacific Fisheries v. Territory of Alaska

• Decision Date: 05 September 1916
• Docket Number: 2709.
• Citation: 236 F. 52
• Parties: ALASKA PACIFIC FISHERIES v. TERRITORY OF ALASKA. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

236 F. 52

ALASKA PACIFIC FISHERIES v. TERRITORY OF ALASKA. ^[1]

No. 2709.

United States Court of Appeals, Ninth Circuit.

September 5, 1916

Hellenthal & Hellenthal, of Juneau, Alaska, for plaintiff in error.

John H Cobb, Chief Counsel for the Territory of Alaska, of Juneau Alaska, for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge.

In an act of Congress 'for the protection and regulation of the fisheries of Alaska,' approved the 26th of June, 1906 (chapter 3547, 34 Stat. 478), it was provided, among other things, that every person or corporation carrying on the business of canning, curing, or preserving fish or manufacturing fish products within Alaska shall, 'in lieu of all other license fees and taxes therefor and thereon, pay license taxes on their said business and output as follows Canned salmon, four cents per case; pickled salmon, ten cents per barrel; salt salmon in bulk, five cents per one hundred pounds. * * * ' The payment and collection of such license tax was required to be in accordance with the provisions of the Act of March 3, 1899, c. 429, 30 Stat. 1253, which was an act defining and punishing crimes in Alaska.

On August 24, 1912, Congress passed the Organic Act for Alaska providing for a territorial Legislature. In this act, which conferred legislative power upon the territory, it was provided that the Constitution of the United States and all the laws not locally inapplicable should be effective; and all laws then in force were to be continued in force until altered, amended, or repealed by Congress or by the Legislature, provided that the authority granted to the Legislature to amend, modify, and repeal laws in force in Alaska should not extend to certain laws, including the game, fish, and fur-seal laws applicable to Alaska, 'or to the laws of the United States providing for taxes on business and trade,' etc. It was also provided:

'That this provision shall not operate to prevent the Legislature from imposing other and additional taxes or licenses.'

Section 6 of the Organic Act provided that the Legislature should convene at the capital, Juneau, on the first Monday in March, 1913, and on the first Monday in March every two years thereafter, but should not continue in session longer than 60 days in any 2 years, unless, etc. By section 9 of the act, the legislative power of the territory shall extend to 'all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States,' etc., 'provided, * * * all taxes shall be uniform upon the same class of subjects and shall be levied and collected under general laws, and the assessments shall be according to the actual value thereof.'

By an act of the Legislature of the territory, approved April 29, 1915 (Laws 1915, c. 76), entitled 'An act to establish a system of taxation, create revenue, and provide for collection thereof, for the territory of Alaska, and for other purposes; and to amend * * * 'An act to establish a system of taxation, create revenue, and provide for collection thereof for the territory of Alaska, and for other purposes,' approved May 1, 1913,' it was provided:

'Section 1. That any person, firm or corporation prosecuting or attempting to prosecute any of the following lines of business in the territory of Alaska shall apply for and obtain a license and pay for said license for the respective lines of business as follows: * * * (8) Fish Traps: Fixed or floating, one hundred dollars per annum. So-called dummy traps included.'

The plaintiff in error, defendant below, was sued by the territory for moneys alleged to be due for prosecuting and attempting to prosecute the business of fishing by means of fish traps situated in the waters of Alaska. After a demurrer had been overruled, defendant answered, setting up, in effect: (1) That the act of the Alaska Legislature just cited was void under the act of Congress creating the Alaska Legislature, and under the Constitution of the United States; (2) that the act was void because the tax attempted to be laid was not uniform upon the same class of subjects, in that it taxes fish traps and gill nets, while seines are not taxed; (3) that the act referred to is void, in that it is an attempt to levy a tax without reference to the value of the thing taxed; (4) that the tax imposed by the act cited is, in fact, a specific tax on property, and as such is levied without reference to the value of the property sought to be taxed, and is therefore contrary to the provisions of the Organic Act; (5) that the act referred to was void because the term of the Legislature had expired when the law was passed; and (6) that the defendants were not engaged in the fishing business within the meaning of the law.

The case was tried upon agreed facts substantially as follows: That the defendant owned 19 fish traps within the waters of Southern Alaska, and that they were all operated during the fishing season of 1915; that none of the fish taken in any trap operated by defendant were sold prior to being canned, but all fish so caught were used by defendant in operating its canning plants; that some of the canneries in Alaska are so situated that they are obliged to supply the fish canned by resorting to the use of fish traps, while others are situated so that the fish can be supplied in no practical manner except by the use of gill nets, and others are so situated that fish cannot be supplied except by the use of seines, and that defendant cannot practically use seines and is obliged to resort to fish traps; that defendant has complied with all the provisions of chapter 3, tit. 7, of the Compiled Laws of Alaska, relating to fish and fisheries, including the provisions of sections 259 to 275a, inclusive, and has paid the license tax provided for by said sections, but that defendant has not paid the tax sued for in this action for 1915, or any part thereof; that the session of the Legislature which passed the act which forms the basis of this action, namely chapter 76 Session Laws of Alaska 1915, convened March 1, 1915, at 12 o'clock noon; that on the 29th of April, 1915, the Legislature adjourned sine die at 12 o'clock midnight according to the official timepieces of the Legislature, that is to say, the clocks hanging in the halls of the two houses were stopped or turned back by the sergeant-at-arms just prior to the hour of 12 o'clock midnight of April 29, 1915, and thereafter, between the hours of 3 and 4 o'clock a.m., sun time, of April 30, 1915, while the clocks in the halls of the Legislature still indicated a time prior to midnight, being stopped or turned back as aforesaid, the act, chapter 76 of the Session Laws of Alaska 1915, was finally passed by both houses of the Legislature and approved by the Governor and enrolled with the Secretary for the territory as it now appears in the printed volume of the Session Laws of Alaska 1915, c. 76; that some of the traps of the defendant are worth over $10,000, while some are not worth to exceed $1,000.

The District Court ordered judgment for the territory for $1,963. Judgment was entered accordingly, and writ of error to this court was sued out.

It is plain, we think, that our conclusions should be arrived at by assuming that the great object of the legislative act of April 29, 1915, quoted above, was to create revenue, and that in its scheme of license taxes the Legislature had in mind provision for the expense of administration of the territory. Congress having given to Alaska a territorial form of government and having created a legislative assembly and conferred upon it legislative powers, the power in the general words used was broad enough to authorize legislation upon 'all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States. ' This was the scope of the power as by first expression conferred. But at once, by the same provision which conferred the general power, there were imposed many restrictions or limitations which must be read with the general transfer of authority, and which, when construed with it, in practical effect greatly limit the exercise of the power. The specific restrictions included, among other matters, legislation with respect to public lands, charters, divorces, lotteries, gambling, manufacture of liquor, subscriptions to stock of incorporated companies, and laws creating loans and bonded indebtedness. We have mentioned these enumerated limitations because their number and importance emphasize the thought that but for them the general words whereby the conferred legislative power should extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States would have comprehended power to legislate with respect to them as included within rightful subjects of legislation. We find also that, by section 3 of the Organic Act, the power was curtailed with respect to the then existing game and fish laws of the United States applicable to Alaska by express declaration that the general authority conferred was not extended to alter, amend, modify, and repeal laws in force on those subjects, or 'to the laws of the United States providing for taxes on business and trade. ' If these restrictions stood without qualifying language, undoubtedly they would prevent legislation which would alter, amend, modify, or repeal not alone the then existing fish laws, but also the laws for taxation of business in force when the Organic Act was passed; that is, August 24, 1912. Plainly such then existing laws would have continued as the only statutes which controlled. But we cannot stop at this point, for, by the same section (3) of the act wherein we read the words which saved existing fish...