Freeman v. Smith

• Decision Date: 12 December 1932
• Docket Number: No. 6923.,6923.
• Parties: FREEMAN v. SMITH.
• Court: U.S. Court of Appeals — Ninth Circuit

62 F.2d 291 (1932)

FREEMAN v. SMITH.

No. 6923.

Circuit Court of Appeals, Ninth Circuit.

December 12, 1932.

H. L. Faulkner, of Juneau, Alaska, and Lund & Lund, of Seattle, Wash., for appellant.

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

Pillsbury, Madison & Sutro, F. D. Madison and L. B. Groezinger, all of San Francisco, Cal., amici curiæ.

Before WILBUR and SAWTELLE, Circuit Judges, and CAVANAH, District Judge.

WILBUR, Circuit Judge.

This is a second appeal in this case. The former one was from a decree of dismissal after the court had sustained a demurrer to the bill of complaint based upon the ground that the facts alleged did not state a cause of action. Freeman v. Smith, 44 F.(2d) 703, 704. After the case had been remanded to the lower court, the defendant, Smith, treasurer of the territory of Alaska, filed an answer denying the allegation of the bill that the average catch of salmon for each year by members of the trolling fleet did not exceed $500 and alleging "that trollers who, during the entire season trolled for salmon in the territorial waters of Alaska, caught during each such seasons an average of more than $3,000 worth of salmon in such waters over and above expenses of operation," and alleging "that an experienced troller devoting his time to trolling for salmon within the territorial waters of Alaska, will each season earn not less than $3,000 over and above expenses of operation." Evidence was adduced upon this issue and the trial court rendered a decree denying the plaintiff any relief. It appears from the opinion of the trial court, which is incorporated in the transcript, that the court based its conclusion upon the inability of the plaintiff to prove the average annual earnings of those fishermen who trolled in Alaskan waters. Eight or ten fishermen testified that their average net earnings as salmon trollers had been approximately $500 per annum, or less. The appellee introduced evidence that certain fishermen had made more than $500 per annum; one of the defendant's witnesses testified "that approximately he made something like around $1,000 a year above expenses; that the average for the trolling fleet would be below this average."

It is argued by the appellee that the decision of this court upon the former appeal is no longer controlling in that there was a failure to prove the above mentioned allegation of the bill which had been admitted on the former appeal. The appellee, therefore, reargues the questions which were argued and submitted on the previous hearing. The basic question presented on the former appeal was the effect of the Act of Congress adopted June 6, 1924 (43 Stat. 464 48 USCA § 221 et seq.) upon the power of a territorial Legislature by its act of 1929 (Session Laws of Alaska, 1929, c. 96, p. 192), to impose a fishing license tax of $250 upon all persons resident or nonresident who had not resided in the territory of Alaska for one year previous to their application for the license to troll for fish, while at the same time imposing a tax of only $1 for the same fishing privilege upon residents of Alaska who had so resided in the territory for a year or more. Upon this question we held that the Act of Congress of June 6, 1924, above referred to (43 Stat. 464), granted or reserved the right to all citizens of the United States to fish within areas where such fishing was not prohibited by regulation adopted by the Secretary of Commerce. This decision was based upon the proviso contained in section 1 of the act (48 USCA § 222) which is as follows: "Provided, That every such regulation made by the Secretary of Commerce shall be of general application within the particular area to which it applies, and that no exclusive or several right of fishery shall be granted therein, nor shall any citizen of the United States be denied the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska where fishing is permitted by the Secretary of Commerce."

We quote from our opinion, written by Judge Rudkin on the former appeal, as follows: "It will thus be seen that the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska, where fishing is permitted by the Secretary of Commerce, is guaranteed to every citizen of the United States without reservation, whether he be a resident of Alaska or not; and the right so granted cannot be impaired or destroyed by the legislative assembly of the territory. If it can, the grant is an idle and empty one at best. Nor is the right thus conferred in anywise impaired by the last section of the act, which provides in general terms that nothing therein contained shall abrogate or curtail the powers granted the territorial Legislature to impose taxes or licenses nor limit or curtail any powers granted the territorial Legislature by the Organic Act."

Further, from our opinion: "The naked power to impose taxes and licenses, or to make reasonable discrimination between...