Martinsen v. Mullaney
| Citation | 85 F. Supp. 76 |
| Decision Date | 29 July 1949 |
| Docket Number | No. 6095-A.,6095-A. |
| Parties | MARTINSEN et al. v. MULLANEY et al. |
| Court | U.S. District Court — District of Alaska |
A. H. Ziegler, Ketchikan, Alaska, for plaintiff.
J. Gerald Williams, Attorney General, John H. Dimond, Assistant Attorney General, for defendant.
This controversy has been submitted without action, upon an agreed statement of facts, under the provisions of Section 57-5-1 et seq., A.C.L.A.1949.
The questions presented concern the validity, as applied to plaintiffs, of Chapter 66, S.L.A.1949, imposing a license tax of $50 on nonresident and $5 on resident fishermen. Plaintiffs Martinsen and Wick are citizens of the State of Washington who engage in halibut fishing in Alaskan waters and on the high seas, while plaintiff Polar Fisheries is a domestic corporation engaged in buying, processing and shipping halibut to foreign and domestic markets outside of the Territory.
The plaintiffs contend:
(1) That the Territory cannot tax the taking of halibut from the high seas or prohibit the purchase thereof from unlicensed fishermen;
(2) That the statute unreasonably discriminates against nonresident fishermen because it imposes a tax of $50 on them as against $5 for resident fishermen; and
(3) That the act does not apply equally to all nonresidents because aliens — that is, citizens of Canada — are allowed by virtue of the act of June 19, 1948, 62 Stat. 533, 46 U.S.C.A. § 251 note, to dispose of their catches of halibut in ports of Alaska upon a compliance with the United States Customs laws.
Section 1 of the Act defines a fisherman as .
Section 2 defines a resident as "any citizen who has resided in the Territory for 12 months immediately preceding application for such license and shall have been a bona fide inhabitant of Alaska for at least six months during each calendar year thereafter, and who maintains his place of abode in Alaska"; and a nonresident as "a citizen who has not resided in Alaska for the 12 months immediately preceding application for license or who maintains his principal business or place of abode outside of the Territory."
Section 5 prohibits the purchase of fish from an unlicensed fisherman.
The act is clearly a revenue measure. Indeed, the Territory is prohibited by Section 3 of the Organic Act, 37 Stat. 512, 48 U.S.C.A. § 24, from regulating the fisheries. Congress has regulated halibut fisheries since June 7, 1924, 43 Stat. 648, and the salmon fisheries of Alaska since 1889, 25 Stat. 1009. The present law regulating the salmon fisheries may be found in 48 U.S. C.A. § 221 et seq., and that regulating the halibut fisheries in 16 U.S.C.A. § 772 et seq.
It is admitted that the act has been construed by the Territory as applicable to fishing on the high seas and that the defendants' officers are attempting to enforce the act in accordance therewith. Plaintiffs contend that the act is not applicable to fishing on the high seas because the jurisdiction of the Territory does not extend beyond the three mile limit from shore. However, it appears reasonably clear that the Territory does have the power to impose a tax on the privilege of fishing on the high seas by its residents, Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 1093, 85 L.Ed. 1552, and if the tax in this instance had been imposed on the privilege of engaging in fishing, as distinguished from actual fishing, then acts preliminary to or connected with actual fishing such as the operation in territorial waters of a vessel outfitted for fishing, between a local port and the fishing grounds, or vice versa with her catch, would have sufficed to bring within its purview all those who engaged in such activities, even though they also engaged in fishing on the high seas. Likewise, had the act expressly included fishing on the high seas, it would have sufficed to bring residents within its scope. But this was not done and hence in the absence of express language to that effect, it must be held that fishing on the high seas is not within the act and that its applicability is limited to waters within the jurisdiction of the Territory.
However, this interpretation does not dispose of the question because the definition of fisherman in Section 1 is not limited to those who fish, but includes everyone who watches or operates a fish trap or is a member of the crew of a tender or other floating equipment used in handling fish. (Emphasis supplied.) It appears reasonably clear that it was the intention of the Legislature to comprehend all those classes identified or connected with the maritime aspect of the industry — that is, the taking, handling and delivery of the fish on the grounds, as distinguished from those engaged in shore operations, such as processing, canning and exporting. Thus, those engaged in operating fish traps or on tenders or scows used in connection with brailing traps or taking delivery from fishermen on the fishing grounds, as well as those working in floating canneries, are engaged in fishing or employed on "floating equipment used in the handling of fish".
Manifestly, when a vessel loaded with halibut taken from the high seas, whether by residents or nonresidents, enters territorial waters and unloads her catch, she falls into the category of "floating equipment used in handling fish" and those employed on her become subject to the taxing power of the Territory.
Plaintiffs further argue that the term "or other fishery resources of Alaska" in Section 1 clearly shows that the Legislature acted under a misconception as to the ownership of the halibut fisheries and that, since they are owned by the United States rather than the Territory, the act is invalid as an attempt to tax a subject within the federal sphere. Aside from the fact that the term is merely descriptive and clearly was not intended as an assertion of ownership or proprietary interest, the act is not in conflict with any law of the United States or an infringement of its rights as proprietor.
I conclude, therefore, that the crew of a vessel which enters territorial waters from other jurisdictions, enroute to fishing grounds on the high seas, or enroute with her catch taken...
To continue reading
Request your trial
-
United States v. Barnett
...Duehay v. Acacia Mut. Life Ins. Co., 70 App.D.C. 245, 1939, 105 F.2d 768, 775, 124 A.L.R. 1268. See also, Martinsen v. Mullaney, D.C.Alaska, 1949, 85 F.Supp. 76, 79, 12 Alaska 455. It seems to us beyond controversy that there is no act of Congress granting to a defendant charged with crimin......
-
Territory of Alaska v. The Arctic Maid
...the jurisdiction of the Territory over Territorial waters within the three-mile zone, does not apply in this case. Martinsen v. Mullaney, D.C., 85 F.Supp. 76, at pages 78, 79. (3) It is well settled that the imposition by the Legislature of the Territory of license taxes relating to the com......
-
Anderson v. Mullaney
...that the tax violates the Fourteenth amendment is concerned, the question differs in form only from that presented in Martinsen v. Mullaney, D.C., 85 F.Supp. 76. In that case this Court held that in the absence of evidence of the existence of a rational basis for classification, the tax of ......
-
Cody v. Union Electric Company
...42 L.Ed. 890 (1898); Waters v. Wisconsin Steel Works of International Harvester Co., 427 F.2d 476 (7th Cir., 1970); Martinsen v. Mullaney, 85 F.Supp. 76, 12 Alaska 455 (1949). The security deposits required by defendant Union Electric Company do not interfere with interstate commerce since ......