
    2 F.(2d) 9
    PACIFIC AMERICAN FISHERIES v. TERRITORY OF ALASKA. 
    
    No. 4246.
    Circuit Court of Appeals, Ninth Circuit.
    Oct. 20, 1924.
    Rehearing Denied Nov. 24, 1924.
    
      Chickering & Gregory, of San Francisco, Cal., Kerr, McCord & Ivey, of Seattle, Wash., R. E. Robertson and H. L. Faulkner, both of Juneau, Alaska, and Blair S. Shuman, of San Francisco, Cal., for plaintiff in error.
    John Rustgard, of Juneau, Alaska, for defendant in error.
    Before ROSS, HUNT, and RUDKIN, Circuit Judges.
    
      
       Certiorari granted 267 U.S. 589, 45 S.Ct. 353, 69 L.Ed. 801.
    
   ROSS, Circuit Judge

(after stating the facts as above).

We see no merit in the contention that the imposition by the Legislature of Alaska of the license taxes in question was in any way an interference with interstate commerce. True, the plaintiff in error is a corporation of the state of Maine and engaged in the business -of catching and canning fish in the waters of that territory for the purpose of transporting and selling them in states and other places outside of Alaska; but that no more makes the fish so caught and canned interstate commerce than would the wheat, barley, corn, wool, or other products of the agriculturists and stockraisers of Alaska, or the metals taken by a citizen of one of the states out of the ground of Alaska thereupon become interstate commerce. When moving in transportation from the territory to outside states, such property undoubtedly thereupon becomes interstate commerce, but not before. ’ This, in our opinion, is very clear.

Does the statute imposing the taxes in question violate any provision of the organic Act of Alaska, enacted by .Congress in 1912? We have no doubt that the business of catching and canning the fish constituted but one business, which business the Legislature of the territory was expressly authorized to tax by the organic act. That such a tax is not a property tax has been expressly decided, both by this court and by the Supreme Court of the United States. See Alaska Pacific Fisheries v. Territory of Alaska, 236 F. 52, 61, 149 C.C.A. 262; Alaska Fish Co. v. Smith, 255 U.S. 44, 50, 41 S.Ct. 219, 65 L.Ed. 489.

In the Alaska Pacific Fisheries Case, supra, 236 F. 52, 57, 149 C.C.A. 262, we further expressly held that one of the purposes conferred by the Organic Act on the territorial Legislature was “the creation of revenue by imposition of a license tax on the business of - canning” fish. It cannot, therefore, be now held, as plaintiff in error urges should be done, that the purpose of the Legislature in imposing the license taxes here complained of was a mere regulation of the canning business without overruling the views of this court heretofore expressed, which we are not disposed to do. In the latter case (236 F. 52, 57, 149 C.C.A. 262, 267) we further held that, “when Congress, in 1912, conferred the legislative power which we have shown exists, while it expressly withheld power to alter or amend laws pertaining to'fish and other certain subjects and saved certain laws then in force, it nevertheless unmistakably transferred power to the newly created legislative body to impose other and additional taxes and licenses; that is, power to impose taxes different from, and it might be additional to, those already in force when the Organic Act was approved. And thus by the Organic Act those general provisions for the protection of the fish which we find in the act of 1906 were kept in force without possibility of alteration, amendment, or repeal by the territorial Legislature, and the specific license tax provided by the act of 1906 was kept in force, but with power transferred to the Legislature to impose, if it should see fit, other and additional license taxes.”

We are not able to say that the imposition by the Legislature of the territory, under the authority conferred upon it by Congress, of the license taxes in question to provide necessary revenue, is in any way altering, amending, modifying, or repealing the then existing fish laws of the United States applicable to Alaska. In Alaska Fish Co. v. Smith, 255 U.S. 44, 41 S.Ct. 219, 65 L.Ed. 489, the Supreme Court sustained the authority of the Legislature of the territory to impose a license tax upon the manufacture of oil and fertilizer from fish, holding that the imposition of such a tax was not a modifying or repealing of the fish laws of the United States; and in the case of Haavik v. Alaska Packers’ Assn., 263 U.S. 510, 44 S.Ct. 177, 68 L.Ed. 414, the same court held in effect that the imposition of an annual poll tax and an annual license tax on nonresident fishermen in Alaska was not a violation of the United States fish laws.

Unlimited power to tax an industry in one sovereignty seems rather inconsistent with the reservation of a power to regulate that industry by another sovereignty, as the' power to tax involves the power to destroy, and may be so exercised as to render any attempt at regulation useless and abortive. The question presented by the record in this case is, in our opinion, close to the border line; but we are not prepared to say that the territory has exceeded the limits of its taxing power as heretofore defined by the courts.

Nor are we able to agree with counsel for the plaintiff in error that the classifications contained in the act in question are so unreasonable and discriminatory as to. render them void. As admitted by the attorney for the defendant in error, they undoubtedly discriminate in favor of small canneries and against the large ones. In Patton v. Brady, 184 U.S. 608, 623, 22 S.Ct. 493, 498, 46 L.Ed. 713, the Supreme Court said: “It is not the province of the judiciary to inquire whether the excise is reasonable in amount, or in respect to the property to which it is applied. Those are matters in respect to whieh the legislative determination is final.” See Giozza v. Tiernan, 148 U.S. 657, 661, 662, 13 S.Ct. 721, 37 L.Ed. 599.

The judgment is affirmed.  