Anderson

191 F.2d 123 13 Alaska 332 ANDERSON et al. v. MULLANEY, Commissioner of Taxation of Territory of Alaska. No. 12586. United States Court of Appeals Ninth Circuit. June 25, 1951. Writ of Certiorari Granted Nov. 5, 1951. See 72 S.Ct. 111 . Wm. L. Paul, Jr., Juneau, Alaska, and Roy E. Jackson, Carl B. Luckerath, and Norman Ackley, Seattle, Wash., 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 Judge. POPE, Circuit Judge. 1 Chapter 66 of the Session Laws of Alaska 1949, enacted March 21, 1949, requires all commercial fishermen who take fish from the fishery resources of Alaska to obtain an annual license from the Territorial Tax Commissioner. For such license the fee charged a resident fisherman is $5; that charged a nonresident fisherman is $50. 1 The statute also prohibits other persons from employing, or purchasing fish from, any unlicensed fisherman. 2 Anderson, Secretary-Treasurer of the appellant Union, and the Alaska Fishermen's Union, on behalf of some 3200 of its members who are nonresidents, and who fish in Alaska each year, brought this action seeking a declaration…

Chapter 66 of the Session Laws of Alaska 1949, enacted March 21, 1949, requires all, commercial fishermen who take fish from the fishery resources of Alaska to obtain an annual license from the Territorial Tax Commissioner. For such li *125 cense the fee charged a resident fisherman is $5; that charged a nonresident fisherman is $50. 1 The statute also prohibits other persons from employing, or purchasing fish from, any unlicensed fisherman.

Anderson, Secretary-Treasurer of the appellant Union, and the Alaska Fishermen’s Union, on behalf of some 3200 of its members who are nonresidents, and who fish in Alaska each year, brought this action seeking a declaration of the court that Chapter 66 is unconstitutional and void insofar as it seeks to exact the $50 nonresident license fee, and praying for an injunction restraining the appellee Commissioner of Taxation from making collection.

The court made findings that “6. Thousands of nonresident fishermen come to Alaska each year and engage in fishing for salmon during the fishing season, which varies from twenty days in Bristol Bay to two months elsewhere. Said nonresident fishermen come to the Territory shortly before the fishing…

I dissent.

(A) Because the gravamen of the court’s opinion is that the territory of Alaska has no more power over taxation than if it were a .state. This is in square conflict with Haavik v. Alaska Packers Association, 263 U.S. 510, 44 S.Ct. 177 , 68 L.Ed. 414 , which held valid am Alaska license tax on nonresident fishermen not imposed on resident fishermen.

The ground of the Haavik decision is that the Territory of Alaska has the same power of taxation that Congress has. In that case Haavik, “While residing in California * * . * was employed by appellee corporation, owner and operator, to serve as seaman and fisherman upon the sailing vessel Star of Finland. He sailed upon her to Alaska, and served with her there while she engaged in fishing, from the middle of May, 1921, until the middle of September.” That is to say, the fisherman upon whom the license fee was imposed was carried by his employer into commerce between. the state and the territory and fished while in the territory for his employer. Haavik was more certainly in interstate commerce than the fishermen in the instant case, of whom there is proof that the vast body of them *135 were transported to Alaska by…