
    236 F. 64
    ALASKA MEXICAN GOLD MINING CO. v. TERRITORY OF ALASKA.
    No. 2727.
    Circuit Court of Appeals, Ninth Circuit.
    Sept. 5, 1916.
    Rehearing denied Oct. 9, 1916.
    
      Hellenthal & Hellenthal, of Juneau, Alaska (Curtis H. Lindley, of San Francisco, Cal., of counsel), for plaintiff in error.
    
      y. H. Cobb, Chief Counsel for the Territory of Alaska, of Juneau, Alaska, for defendant in error.
    Before GILBERT, ROSS, and HUNT, Circuit Judges.
   HUNT, Circuit Judge

(after stating the facts as above).

By the Act of May 1, 1913, which was to establish a system of taxation, create revenue, and provide for collection thereof, and for other purposes (Alaska Salmon Company v. Territory of Alaska, No. 2720, 236 F. 62, 149 C.C.A. 272), the Legislature provided that any person prosecuting any of the following lines of business within Alaska should first apply for and obtain license so to do from the District Court or subdivision thereof in said territory, and “pay for said license for the respective lines of business and trades as follows, to wit: * * * Mining. One-half of one per cent, on net income over and above five thousand dollars per annum.” Section 2 of the act, so far as material, is as follows: “That the licenses provided for in this act shall be issued'by the clerk of the District Court or any subdivision thereof in compliance with the order of the court or judge thereof duly made and entered; and the clerk of the court shall keep a full record of all applications for license and of all recommendations for and remonstrances against the granting of licenses and the action of the court thereon.”

By section 3 of the act it is provided: “That any person, corporation or company doing or attempting to do business in violation of the provisions of this act, or without first having paid the license therein required, shall be deemed guilty "of a misdemeanor, and upon conviction thereof shall be fined, for the first offense, in a sum equal to the license required for the business, trade or occupation; and for the second offense, fine equal to double amount of the license required; and for the third offense, three times the license required and imprisonment for not less than thirty days nor more than six months; provided, that each day business is done or attempted to be done in violation of this act shall constitute a separate and distinct offense; provided further, that in all prosecutions under this act the costs shall be assessed against any person, firm or corporation convicted of violations hereof, in addition to the fine or penalty imposed, and for failure to pay such fine and costs such person, firm or corporation may be imprisoned, in the discretion of the court, at the rate of one day for every two dollars of said fine and costs; provided further, however, that in the event of any person, firm, or corporation shall fail to pay the license required by the provisions of this act and shall further fail to pay any fine that may be imposed by a court of competent jurisdiction, for such failure to so pay said license fee or tax required by the provisions of this act, judgment may be entered against such firm, person, or corporation and process shall be issued for the enforcement of the collection of said judgment and in" the same manner as judgments in civil proceedings.”

The contention that no civil liability was created by the act of 1913 must not be confused with the belief that no duty to pay was imposed by that act. There was a legal command to take out a license before the plaintiff in error prosecuted the “line of business” of mining. It may be assumed that under the law of 1913 the only way the territory had to enforce the duty to pay was by conviction of misdemeanor after failure to pay, and, upon continuing failure to pay, by judgment to collect as in civil suits. But the duty to pay having existed, remedy for the enforcement of the duty or obligation could be provided by legislation subsequent to the time when the duty arose; or if when the duty arose there was a remedy, but it was exclusively confined to criminal prosecution and judgment thereafter, such remedy could be changed or enlarged by subsequent legislative action, or additional remedy could be given, without impairing the rights of the plaintiff in-error. Sturges v. Carter, 114 U.S. 511, 5 S.Ct. 1014, 29 L.Ed. 240; Holthaus v. Adams County, 74 Neb. 861, 105 N.W. 632; Hosmer v. People, 96 Ill. 58; State ex rel. Kemper v. St. L., K. C. & N. Ry. Co., 9 Mo.App. 532; Cooley on Taxation (3d Ed.) p. 492 et seq.; Royall v. Virginia, 116 U.S. 572, 583, 6 S.Ct. 510, 29 L.Ed. 735.

'By section 4 of chapter 76 of the Laws of Alaska for 1915, it was provided that special remedies . provided by that particular act or other acts of the Legislature shall not be deemed exclusive, and that “any appropriate remedy either civil or criminal, or both, may be invoked by the territory in the collection of all taxes, and in civil actions the same penalties may be collected” as were by the act of 1915 provided in criminal actions. Furthermore, it was provided by section 7 of the Act of April 29, 1915, which amended the act of 1913, that the act of 1913 was repealed except in so far as the same was reenacted by the Act of April 29, 1915, but that nothing in the act of 1915 contained “shall be construed to relieve any person, firm or corporation. from the payment of any tax, penalty and interest accrued and owing under the act of which this act is an amendment, but all such taxes, penalties and interest shall be paid, or collected and enforced in the same manner as taxes herein provided for are collected and enforced.”

Construing these statutes together, we find that a civil remedy for the collection of taxes was given by section 4 of the act of 1915, and that, under section 7 of the same act, remedy became available to collect taxes due under the act of 1913. There is no rule which prohibited the territorial Legislature of 1915 from adopting the remedies it did to recover for license taxes prescribed by the law of 1913. Nor does the fact that, in an action of debt for the tax, it may be necessary to resort to sources of information outside of the statute to arrive at the amount on which the per. centum of tax fixed by the statute is to be calculated, affect the question; for the statutory charge is certain for the purposes of an action in debt, becatise it can be made certain through action in court. This principle was upheld in United States v. Chamberlin, 219 U.S. 250, 31 S.Ct. 155, 55 L.Ed. 204. It was there held that the penalties in the law then under examination were provided in order to induce the payment of the tax, and not as a substitute for payment. The court said: “It cannot be supposed that Congress intended, by penalizing delinquency, to deprive the government of any suitable means of enforcing the collection of revenue. * * * Punishment by imprisonment, under section 13, is imposed only where it can be shown that there was an ‘intent to evade the provisions’ of the act, and while this remedy is appropriate in such a case, 'and is for the obvious purpose of discouraging evasion, it is without application where, for any other reason, the tax has not been paid and thereby the government has lost its revenue.”

The language of section 7 of the act is very explicit in providing that taxes due under the act of 1913 shall be collected and enforced in the same manner that taxes provided for by the act of 1915 shall be collected and enforced. There is therefore a perfectly clear expression that the intention of the Legislature was that the remedy shall be under the act of 1915; and it is settled that the grant of a new remedy in unequivocal terms, even-though retroactive, is not necessarily void legislation. League v. Texas, 184 U.S. 156, 22 S.Ct. 475, 46 L.Ed. 478; Stephens v. Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43 L.Ed. 1041; Cook v. United States, 138 U.S. 157, 11 S.Ct. 268, 34 L.Ed. 906.

We are unable to agree with plaintiff in error in the argument that chapter 52, above referred to, is void because of an impossibility to comply with the provisions of the act. It will be readily granted that the act is not as explicit as it should be, and that its application calls for a postponement of the payment of the tax until the amount of revenue from the business taxed can be ascertained; but the fact that it is inartificially drawn and that its exact enforcement may be difficult, ought not to make it invalid, if the language used expresses a plain meaning by the lawmaking body. For many years the collection of license taxes which were imposed by acts of Congress for Alaska was carried on by collecting indeterminate amounts. Act June 6, 1900, c. 786, 31 Stat. 321. The system was not new in the territory, and, in the light of legislative history, not incapable of being put into practical operation; and, the tax being one which could be lawfully imposed, we believe it beyond judicial power to declare the law imposing it to be invalid merely because the Legislature laid down a procedure which, if literally obeyed in the arrangement of the steps required, necessarily would defeat the 'plain, expressed object of the legislation. The intention being plain, the inartificiality of the law should not result in its overthrow. Johnson v. Southern Pacific, 196 U.S. 1, 25 S.Ct. 158, 49 L.Ed. 363; Cliquot’s Champagne, 3 Wall.(70 U.S.) 114, 18 L.Ed. 116; United States v. Stowell, 133 U.S. 1, 12, 10 S.Ct. 244, 33 L.Ed. 555.

It is urged that the act should be declared invalid because under its provisions the “action of a court or judge in granting or refusing a license is purely arbitrary and is guided by nothing except the remonstrances and recommendations filed with the application and submitted to him therewith.” Reverting to the provisions of the act of 1913, we find that by section 2 thereof the license provided for “shall be issued by the clerk of the District Court * * * in compliance with the order of the court or judge thereof duly made and entered; and the clerk of the court shall keep a full record of all applications for license and of all recommendations for and remonstrances against the granting of licenses and the action of the court thereon.” Section 3, following section 2 just quoted, has already been referred to as the clause making provision for penalizing those doing business in violation of the provisions of the act, or without first having paid ‘ the license therein required. The procedure contemplated seems to have been as follows: The applicant for a license shall duly file his application with the clerk of the District Court. The clerk shall keep a record of this application and recommendations and remonstrances against the granting of the license applied for. The court must act upon such recommendations and remonstrances, and when the court has acted the license shall be issued by the clerk in compliance with the order of the court or judge. The language in the act of 1913, as just heretofore quoted, is the same as is found in section 2572 of the Compiled Laws of Alaska. In the act of Congress, however, by section 2573, Compiled Laws of Alaska, special provision was made with relation to licenses to be issued for sale of intoxicating liquor; it being required that, before license was granted in such cases, a certain showing had to be made to the satisfaction of the court that a majority of the male and female citizens over the age of 21 years within a certain distance of the place where the liquor was to be sold had consented to the issuance of the license. This provision apparently only applied to action upon applications for license for disposition of intoxicating liquors. It may be that, as to licenses where the business is in itself lawful, no power under the law of 1913 was given to the court to withhold issuance of license after application was duly made; but, inasmuch as we think it was not an excess of legislative power to require an applicant for license to apply first to the territorial court and to make the court or judge a deciding authority in acting upon the application, a decision on the point suggested is not necessary in this case, because this plaintiff in error has never filed an application for a license, and is therefore in no position at present to assail the validity of the law on the ground of possible abuse of power vested in the court or judge called on to make an order with respect to its application. If, after it shall have applied, the court or judge should deny it a license, it will then be time enough to invoke remedy for any injustice that may have been done.

The contention that the 'license tax imposed is a revenue measure pure and simple, and as such is in conflict with section 9 of the Organic Act, is involved in the discussion which we have entered into in the case of Alaska Pacific Fisheries v. Territory of Alaska (No. 2709) 236 Fed. 52, 149 C.C.A. 262, and we abide by the conclusion reached in that case.

We find none of the objections made to the validity of the law well taken.

The judgment of the District Court is therefore affirmed.  