Freeman v. Smith, 6150.
| Decision Date | 24 November 1930 |
| Docket Number | No. 6150.,6150. |
| Citation | 44 F.2d 703 |
| Parties | FREEMAN v. SMITH. |
| Court | U.S. Court of Appeals — Ninth Circuit |
H. L. Faulkner, of Juneau, Alaska, and John G. Lund and Martin J. Lund, both of Seattle, Wash., for appellant.
John Rustgard, Atty. Gen., for appellee.
Pillsbury, Madison & Sutro, F. D. Madison, and Francis Gill, all of San Francisco, Cal., amici curiæ.
Before RUDKIN and WILBUR, Circuit Judges, and KERRIGAN, District Judge.
This case involves the validity of section 2 of chapter 96 of the Laws of Alaska, 1929, which exacts an annual license fee of $250 from nonresident fishermen who use hook and line in trolling, as against a license fee of $1 for resident fishermen. It appears from the allegations of the complaint that the plaintiff is a citizen of the United States and a resident of Tacoma, in the state of Washington; that for many years last past he has been engaged in the business of fishing for salmon in the territorial waters of Alaska and was licensed so to do by the treasurer of the territory; that during that period his average catch of salmon each year did not exceed $500 in value, and his catch was equal to the average catch made by other members of the trolling fleet; that the territorial act above mentioned discriminates against nonresident trollers in favor of resident trollers; and that the license fee exacted is exorbitant, unreasonable, and prohibitive, in view of the fact that the quantity of salmon which may be caught in the territorial waters of Alaska during any season is speculative, and the requirements of a license fee of $250, with expenses of operation added, will not leave reasonable compensation for the time and labor expended and for the depreciation of equipment. The relief sought was an injunction against the treasurer of the territory, enjoining him, his deputies, agents, employees, and servants, from attempting to collect the license fee referred to, by distraint or otherwise, and that the act in question be declared null and void. The court below sustained a general demurrer to the complaint for want of sufficient facts, and entered a decree of dismissal. From that decree the plaintiff has appealed.
We are not now concerned with the almost unlimited power possessed by the several states over the fish and game within their borders, nor are we particularly concerned with the legislative authority of a territory when limited only by the rightful subject of legislation clause usually found in Organic Acts. The question here is: Does the territorial act of 1929 deny to citizens of the United States rights guaranteed to them by the laws of the United States? and we are constrained to hold that it does.
For the purpose of protecting and conserving the fisheries of the United States in all waters of Alaska, the Act of June 6, 1924 (43 Stat. 464 48 USCA § 221 et seq.), provides that the Secretary of Commerce may from time to time set apart and reserve fishing areas in any of the waters of Alaska over which the United States has jurisdiction, and within such...
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