Pacific American Fisheries v. Mullaney

• Decision Date: 25 June 1951
• Docket Number: No. 12623.,12623.
• Parties: PACIFIC AMERICAN FISHERIES, Inc. v. MULLANEY, Commissioner of Taxation, Territory of Alaska.
• Court: U.S. Court of Appeals — Ninth Circuit

191 F.2d 137 (1951)

PACIFIC AMERICAN FISHERIES, Inc. v. MULLANEY, Commissioner of Taxation, Territory of Alaska.

No. 12623.

United States Court of Appeals Ninth Circuit.

June 25, 1951.

Faulkner, Banfield & Boochever, H. L. Faulkner, Juneau, Alaska, for appellant.

J. Gerald Williams, Atty. Gen., of Alaska, John H. Dimond, Asst. Atty. Gen., for appellee.

Before DENMAN, Chief Judge, and ORR, and POPE, Circuit Judges.

POPE, Circuit Judge.

The appellant, a Delaware Corporation, brought this action against appellee as Commissioner of Taxation of the Territory of Alaska, for the purpose of procuring an adjudication of the invalidity of Chapter 66 of the Session Laws of Alaska 1949, the same statute considered in Anderson et al. v. Mullaney, 9 Cir., 191 F.2d 123. The complaint alleges that the enactment mentioned, which imposes a license tax of $50 annually on nonresident fishermen and $5.00 annually on resident fishermen, "is invalid and of no force or effect, because it imposes a higher tax on nonresidents than on residents, and makes an unlawful discrimination between residents and nonresidents * * *."

The complaint which was filed August 5, 1949, further alleges that the appellant employs approximately 400 nonresident fishermen in its business of salmon fishing and salmon canning and packing in the Territory of Alaska; that in preparation for the salmon fishing season it has expended large sums for the purchase of equipment, cans, boxes, fishing gear and supplies, and in the transportation of men and supplies to the Territory; that it gets a large part of its fish supply from these nonresident fishermen; that in the month of July at Naknek, Alaska, where appellant has a salmon cannery, the defendant sent his deputies to appellant's property with warrants of arrest and by means of threats and coercion forced the payment of approximately $4000 in nonresident fishermen's license taxes on account of some 80 nonresident fishermen there employed and which sum appellant had to pay to avoid closing its operations. It is alleged that the defendant is making threats to take similar action with respect to the remaining 320 nonresident fishermen upon whom the appellant depends for its supply of fish. It appears from an affidavit attached to the complaint and purportedly made a part of it that approximately 245 of these nonresident employees of the appellant have not paid the license tax. The complaint also alleges that under some of its union contracts with nonresident fishermen employees, the appellant is bound to pay all fishing fees lawfully levied by the Territory, although the number of nonresident fishermen affected by such contracts is not set forth. It is alleged further that if appellant employs nonresident fishermen on whose behalf the license fee has not been paid, or purchases fish from such individuals, it is liable to fines and other penalties under Chapter 66, and that if it would avoid such penalties it must itself pay the tax for the fishermen whether it is obligated to do so by its contracts or not, and it is alleged that in fact, the appellee is demanding of the appellant that it thus pay such taxes, which will amount to approximately $16,000. It says further that there is no means whereby appellant may pay such sums under protest and recover them back; that it has no adequate remedy at law to protect itself against the exaction of an invalid tax; that it is threatened with an immediate, substantial and irreparable injury. The complaint prays (1) for a preliminary injunction during the pendency of the suit restraining the appellee and his agents from enforcing the provisions of Chapter 66, from collecting any part of the tax from appellant and from interfering with the defendant's operations; (2) for a permanent injunction to the same effect; and (3) for an order adjudging that "Chapter 66 * * * is null and void and of no legal force and effect as it applies to nonresident fishermen."

Upon the filing of the complaint a temporary restraining order was issued with an order to show cause why an injunction pendente lite should not be issued. Additional affidavits pro and con were filed and after a hearing and consideration of the pleadings and affidavits the preliminary injunction was denied and the temporary restraining order dissolved.

The court made no findings in support of its order but did file two opinions. The substance of each of these opinions was that the facts shown were insufficient to warrant the interposition of a court of equity, the court citing in one opinion Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416, and in the other, Spielman Motor Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322. The opinions made it clear that the court considered that this was merely an attempt to enjoin an ordinary criminal prosecution and that the facts did not disclose a sufficient likelihood of injury to property rights or a sufficient showing of want of adequate remedy at law to bring the case within the exception to the rule that equity will not ordinarily enjoin a criminal prosecution. Thereafter an answer was filed putting in issue most of the allegations of the complaint. The defendant then moved for judgment on the pleadings on two grounds: (1) the decision of the Alaska court in the case of Anderson v. Mullaney, supra, holding Chapter 66 valid; and (2) that injunction cannot be granted since courts of equity do not restrain threatened criminal prosecutions, the court having previously held in its order denying a temporary injunction that the allegations of the complaint were insufficient to warrant the interposition of a court of equity in this case.

Upon hearing on this motion the court determined to treat the motion as one for a summary judgment, and ordered that such judgment be entered for the defendant. It does not appear that either party was afforded an opportunity to make any further showing by way of affidavit or otherwise after the court determined to treat the motion as one for summary judgment. The court made no findings in support of the judgment. The judgment itself recited: "The court having read and considered the pleadings on file herein and having heard the arguments of respective counsel, and having considered matters outside of the pleadings...