Alaska Pacific Fisheries v. Territory of Alaska

• Decision Date: 05 September 1916
• Docket Number: 2731.
• Citation: 236 F. 70
• Parties: ALASKA PACIFIC FISHERIES v. TERRITORY OF ALASKA. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

236 F. 70

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

No. 2731.

United States Court of Appeals, Ninth Circuit.

September 5, 1916

This is an action brought to recover taxes claimed to be due under the act of the territorial Legislature of Alaska for prosecuting the business of fishing for and canning salmon in Alaska between August 1 and December 31, 19138 during which period plaintiff in error canned various quantities of salmon.

The contention of the territory is that by an act of the Alaska Legislature approved May 1, 1913, there became due to the territory $769.48, payable on or before January 15, 1914, and the sum of $2,488.89, with interest, alleged to be due for failure on the part of the plaintiff in error to take out a license to carry on the business of taking and canning salmon during the year 1914; the tax being alleged to be due before January 15, 1915.

Judgment was entered in favor of the territory after demurrer had been overruled and defendant had elected to stand upon the demurrer.

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

J. 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 (after stating the facts as above).

The questions presented are: (1) Does the act of the territorial Legislature of 1913 (Laws 1913, c. 52), which establishes a system of taxation, creates revenue, and provides for collection thereof, for the territory of Alaska, and for other purposes, create any civil liability? (2) Does this act just referred to, taken in connection with the subsequent act of the Legislature of Alaska passed in 1915 (Laws 1915, c 76), provide for any civil remedy? (3) Is the act of the territorial Legislature of 1913 valid? (4) Can plaintiff in error be held liable in view of the provisions of the act of Congress of June, 1906 (Act June 25, 1906, c. 3547, 34 Stat 478)?

Counsel for plaintiff in error, in their opening brief, devote much attention to the argument that the act of the Alaska Legislature of May 1, 1913, creates no civil liability, and invoke the ruling of this court in United States v. Jourden, 193 F. 986, 113 C.C.A. 606; but under the conditions existing in the present case we do not regard that case as controlling. There the court held that a civil action by the United States would not lie to recover the wholesale fee of a retail liquor dealer who was selling at wholesale in violation of the statute, the court resting its decision upon the ground that a civil action could not be brought because there was no provision, express or implied, in the statutes of Alaska, for the recovery of the license fee by civil action. The case is to be distinguished, in that by the act of the Legislature of Alaska of 1915 there is a civil remedy for the collection of the license tax due under the revenue act of 1913 which is effectual, as we have pointed out in Alaska Mexican Gold Mining Co. v. Territory of Alaska, 236 F. 64, . . . C.C.A. . . ., No. 2727.

As to the points that the act is invalid because it is indefinite and uncertain and incapable of enforcement, we need add but little to what was said in the case of Alaska Mexican Gold Mining Co. v. Territory of Alaska, supra. A careful reading of section 3 of the act of 1913, which provides that any...