J. Elroy McCaw and John D. Keating v. Earl W. Fase, the Tax Commissioner of the Territory of Hawaii
Opinion
Opinion
Yankwich, J.
On November 15, 1950, the appellants J. Elroy McCaw and John D. Keating began an action in the United States District Court for the Territory of Hawaii, against Torkel Westly, the then Tax Commissioner of the Territory of Hawaii. McCaw is a citizen and resident of the State of Washington. Keating is a citizen and resident of the State of Oregon. Since the commencement of the action, Earl W. Fase has succeeded Westly as Tax Commissioner.
In their complaint, the appellants attacked the validity and sought to enjoin the enforcement of a tax law, § 5455(d) of Chapter 101 of the Revised Laws of Hawaii, 1945. The challenge was based upon the ground that the law was unconstitutional as applied to the appellants, who are operating a radio station, KPOA, under a temporary license issued by the Federal Communications Commission, in that the tax on the gross receipts of the station was unconstitutional as a burden on commerce and an attempt to regulate and control an instrumentality of interstate commerce. Jurisdiction was invoked under 28 U.S.C. §§ 1331 , 1332 and 1337. Declaration of rights was also sought under 28 U.S.C. § 2201 .