90 TJ. S, BUREAU OF FISHERIES 



amend, modify, and repeal laws in force in Alaska should not extend 

 to the game, fish, and fur-seal laws. The Supreme Court held that 

 the legislature might act with the intent to discourage canning 

 larger amounts, and that canneries, not fisheries, were the direct 

 object of attack. It was held that any tax is a discouragement and 

 therefore a regulation so far as it goes, and that the unlimited power 

 to tax, expressly given, may be exercised with consideration of col- 

 lateral advantages and disadvantages. 



The decision of the Supreme Court is as follows: 



This is a suit by the Territory of Alaska to recover from the petitioner, Pacific 

 American Fisheries, license taxes alleged to be due upon cases of salmon packed 

 by the defendant at four canneries named. The defendant in its answer set up 

 that the Territorial taxing act was contrary to the act of Congress of August 24, 

 1912 (c. 387 (sec. 3), 37 Stat. 512), creating a legislative assembly in the Territory 

 of Alaska, and to the Constitution of the United States. The Territory demurred; 

 there was a judgment for the plaintiff, and this was affirmed by the circuit court 

 of appeals (2 Fed. Rep. (2d) 9). A writ of certiorari was granted by this court 

 (267 U. S. 589). 



The taxes in question were imposed by chapter 101, section 2, subdivision 8, 

 Laws of Alaska, 1923, amending chapter 31 of the Laws of 1921. By (c) of that 

 subdivision salmon canneries, after a tax by (6) of 10 cents per case, are charged 

 an additional tax on a pack of kings, reds, and sockeyes, counted together, at 

 any one cannery, as follows: On all cases in excess of 10,000 and not more than 

 25,000, 5 cents per case; in excess of 25,000 and not more than 40,000, 10 cents 

 per case; in excess of 40,000 and not more than 50,000, 15 cents per case; and on 

 all in excess of 50,000, 20 cents per case. Similarly in (d) and (e) a tax of 4J^ 

 cents per case is imposed on medium reds, cohos, and pinks; with additional taxes 

 for each increase of numbers as in the previous subdivision. By (/) chums are 

 taxed 3 cents per case. The petitioner says that this graduated tax is inconsistent 

 with the act of Congress mentioned, which provides that the authority therein 

 granted to alter, amend, modify, and repeal laws in force in Alaska should not 

 extend to the game, fish, and fur-seal laws, and presses this contention notwith- 

 standing the further proviso that this provision shall not operate to prevent the 

 legislature from imposing other and additional taxes or licenses. The petitioner 

 also says that the classification upon which the surtax is based is unreasonable 

 and a denial of due process of law, contrary to the fifth amendment of the Con- 

 stitution of the United States. No question is raised about the uniform tax of 

 10 cents per case imposed by (b). That has been paid. 



The petitioner offers various reasons to show that this tax is not what it 

 purports to be but is an attempt to regulate fisheries, which the petitioner 

 believes Congress has not given the Territory power to regulate. The answer 

 alleges that it was known that the revenue from these taxes would exceed the 

 appropriations and needs of the Territory, and from this and other things the 

 conclusion is drawn that the taxes were levied with the intent of driving the 

 defendant out of its business. But the premise could not be known, it only 

 could be prophesied. If known the conclusion as to legislative intent would not 

 follow; and if the intent were entertained, in the only sense in which it rationally 

 could be imputed — that is, to discourage canning the larger amounts — the legisla- 

 ture lawfully might act with that intent. Fisheries were not the direct object 

 of attack, but canneries. It would require a strong case in any event to invalidate 

 a tax on things that the legislature had power to regulate because of its collateral 

 reaction on something else. But here even as to fisheries the legislature is given 

 power to tax. Any tax is a discouragement and therefore a regulation so far as 

 it goes, and the most plausible reconciliation of this power with the restrictions 

 upon amending or modifying the laws in force is that the only purpose of the 

 restrictions was to prevent the Territory from doing away with all protection, in 

 a shortsighted rush for fish. At least we must take it to be clear that the un- 

 limited power expressly given may be exercised with consideration of collateral 

 advantages and disadvantages. (Alaska Fish Salting and By-Products Co. v. 

 Smith, 255 U. S. 44, 48.) It could not be exercised intelligently otherwise. The 

 extent of the power is a question of specific interpretation not of general principle; 

 and therefore we leave the many familiar cases that were cited on one side. 



It is not unworthy of notice that in section 9 of the act of August 24, 1912, an 

 earlier statute of July 30, 1886 (c. 818, sec. 1, 24 Stat. 170), is taken up, in which 



