APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Appellant challenges the validity of the Act of the Alaska Legislature approved May 1, 1919 (c. 29, Session Laws 1919), which imposes upon each male person, with certain exceptions, within the territory or the waters thereof an annual poll tax of five dollars to be used for school purposes; and also that portion of the Act of the same Legislature approved May 5, 1921 (c. 31, Session Laws 1921), which imposes an annual license tax of Five dollars upon every non-resident fisherman -- the term "to include all persons employed on a boat engaged in fishing."
Congress established an organized government for Alaska by the Act of August 24, 1912, c. 387, 37 Stat. 512. It declares that "the Constitution of the United States, and all the laws thereof which are not locally inapplicable, shall have the same force and effect within the said Territory as elsewhere in the United States." It also created a Legislature with power and authority, which "shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States," subject to specified restrictions. One of them is this -- "nor shall the lands or other property of nonresidents be taxed higher than the lands or other property of residents."
While residing in California appellant 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. In compliance with the above-mentioned statutes, appellee paid the taxes which they imposed upon him and, on final settlement, charged the same against his wages. By this proceeding he seeks to recover the amount so deducted. Without opinion the court below sustained the validity of the taxes. Both statutes have been considered and
upheld by the Circuit Court of Appeals for the Ninth Circuit. Alaska Packers' Association v. Hedenskoy, 267 Fed. 154; Northern Commercial Co. v. Territory of Alaska, 289 Fed, 786.
Plainly, we think, the Territorial Legislature had authority under the terms of the Organie Act to impose both the head and the license tax unless, for want of power, Congress itself could not have laid them by direct action. Talbott v. Silver Bow County, 139 U.S. 438, 448; Binns v. United States, 194 U.S. 486, 491; Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87; Territory of Alaska v. Troy, 258 U.S. 101.
Appellant went to the Territory for the purpose of engaging in the business of fishing and remained there for at least four months. He was not merely passing through -- not a mere sightseer or tourist -- but for a considerable period while so employed enjoyed the protection and was within the jurisdiction of the local government. To require him to contribute something toward its support did not deprive him of property without due process of law within the Fifth Amendment. Such cases as Dewey v. Des Moines, 173 U.S. 193, and Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 202, relied upon to support the contrary view, are not controlling.
The tax was upon an individual actually within the Territory; there was no attempt to reach something in a mere state of transit or beyond the borders. Some general rules touching the taxation of property were pointed out in Brown v. Houston, 114 U.S. 622, 632, 633, and Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18. No more stringent ones should be applied when poll taxes are questioned. Unless restrained by constitutional provision, the sovereign has power to tax all persons and property actually within its jurisdiction and enjoying the benefit and protection of its laws. Cooley on Taxation, 3d ed., p. 22.
We are not here concerned with taxation by a State. The license tax cannot be said to conflict with § 2, Art. IV, of the Constitution -- "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." It applies only to nonresident fishermen; citizens of every State are treated alike. Only residents of the Territory are preferred. This is not wholly arbitrary or unreasonable, and we find nothing in the Constitution which prohibits Congress from favoring those who have acquired a local residence and upon whose efforts the future ...