Territory of Alaska v. American Can Company – Oral Argument – December 09, 1958 (Part 2)

Media for Territory of Alaska v. American Can Company

Audio Transcription for Oral Argument – December 09, 1958 (Part 1) in Territory of Alaska v. American Can Company

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Earl Warren:

Mr. Arnold, you may proceed.

W. C. Arnold:

Thank you, Mr. Chief Justice.

At the recess I was discussing the legal implications of the appeal on the Alaska property tax.

At Chapter 22, the Session Laws of 1953 commonly known as the repealing Act.

It is our view of course that under the general universal rules of statutory construction that the repealing Act having saved some taxes from the effect of repeal is to be construed as an intention on the part of the Legislature to save those taxes and none other upon the general ground that a specific exemption, exception or provision is controlling over a general provision expressed in other laws.

Of course under the common law as it existed even back to foundation of our own Constitution, the repeal of a taxing statute abrogated all taxes due and unpaid at that time of the repeal unless they were specifically saved or unless — in other words, the repealing Act contained a specific provision to the contrary.

This is the universal rule.

There’s no authority to a contrary.

None is cited by the territory.

I do not think that they challenge the rule.

They simply seek to avoid its application.

Now, many states — United States, Territory of Alaska, all have general laws dealing with this subject.

Alaska had a General Savings Act which is quoted in the briefs of counsel which saves — provides at a no obligation founded on the statute or obligation incurred, tax or license to be due.

It provides — cuts the fees and licenses due may be enforced after repeal unless the repealing Act provides to the contrary.

And of course it’s our position and supported I think amply that this repealing Act did provide to the contrary.

It was not the intention of the Legislature to save all taxes due under the Act nor was it their intention to abrogate all the taxes due under the Act.

They enacted a special section, Section 2 of the Act, specifically delineating the taxes they desired to save.

That provision is contrary or in conflict with the General Savings Act of Alaska.

And being specific, later in point at time, it must be held to control.

Mr. Arnold, what — what was the purpose of subsection (b) (Inaudible)

W. C. Arnold:

Because the exemption — the — in setting provisions of the Alaska Property Tax Act, it contained a provision authorizing the territorial tax commissioner and other officials of the territory to grant incentive exemptions —

Hugo L. Black:

To what?

W. C. Arnold:

Incentive exemptions for other creation of new industries, a territory at it came out of efforts to induce the development of Alaska’s pulp and other — other resources.

There was a provision in the law authorizing the issuance of exemption certificates, as an incentive to induce capital and those certificates.

And those exemption ran not only to the territorial taxes but to the municipal taxes and the public utility district taxes so that they — the effort here by (b) was to provide that the exemption certificates in existence should continue in existence throughout the current year when the municipalities and public utility districts were levying taxes under this Section 2 (a).

It was to complete, it was an effort on the part of the Legislature successful one to leave that phase of the matter just as it was before.

Hugo L. Black:

Well, again this time (b) really had a — in fact, only for the current fact here whatever that might be, governed by (a)?

W. C. Arnold:

It — it so reads, Mr. Justice.

An exemption from taxes referred to in Section A above, it refers only to the exemptions to those taxes, (a) above are the taxes which have been levied and assessed by any municipality or which are levied and assessed during the current fiscal year.

Now of course the exemption had been in effect in prior years, they left it in effect just to priors years and continued it in effect as to the current year.

Hugo L. Black:

But so far as (Inaudible)

W. C. Arnold:

The taxes were not forgiven for prior years in — in municipalities and school districts, in public utility districts.

They were expect — expressly saved from the effect of the repeal.

None of them were forgiven.

Charles E. Whittaker:

Do you say that (Inaudible) to an attempt on repeal?

W. C. Arnold:

Yes, Mr. Justice Whittaker.

That is in my opinion is the effect.

It saved those taxes in municipalities, school districts, and it continued the incentive exemption after those taxes.

Charles E. Whittaker:

Do you divide that, as I understand (Inaudible) taxes which have been levied?

W. C. Arnold:

Well, taxes which have been levied in my — in my view apply to taxes levied in municipalities, school districts and so forth during the year 1949 or 1950, 1951 and 1952.

Charles E. Whittaker:

(Inaudible)

That’s right, isn’t it?

W. C. Arnold:

That’s correct.

But Mr. Justice Whittaker, he sustains that argument by changing the tax to the Act and I — I quote him, I think, correctly.

And his argument here a few minutes ago.

And I’m referring now, to Section 2 (a) which is on page 5 of the brief.

He says, “Now let’s read this, to mean any taxes which are levied (Inaudible).”

Well it doesn’t say that.

Hugo L. Black:

I thought — I must have misunderstood him.

I thought he read the first clause to those that have been even before that in 1953, and the second clause to those which are levied in 1953.

W. C. Arnold:

Well, that’s the way I read it Mr. Justice Black.

I read that have been as to apply to former years.

Hugo L. Black:

Well, I didn’t understand him to read it as applied to former years.

W. C. Arnold:

Well, I — he —

Hugo L. Black:

But to taxes that had already been assessed —

W. C. Arnold:

You mean —

Hugo L. Black:

— in the year 1953.

W. C. Arnold:

Well, I think that’s his argument.

Hugo L. Black:

That’s what I thought.

W. C. Arnold:

I –I — I just want to be sure I was correct.

W. C. Arnold:

I — I’m —

Hugo L. Black:

May I —

W. C. Arnold:

— desperately want and understood it is not mine because I don’t agree with it.

Hugo L. Black:

I understand.

Charles E. Whittaker:

(Inaudible)

W. C. Arnold:

Yes.

Charles E. Whittaker:

I believe Justice (Inaudible) —

W. C. Arnold:

That’s correct.

Charles E. Whittaker:

So, could it be that the — the various school districts might assess for — from any time beginning to January 1 and ending it December 31 in the year 1953.

W. C. Arnold:

That’s correct.

Charles E. Whittaker:

Not only — as I understand the Attorney General, (Inaudible) that situation and apply it.

Now applies in Section 2 (Inaudible) that Section 2 means that many tax that has been assessed by one of those (Inaudible) in the current year.

Or that maybe if that’s — after the passage (Inaudible) is that that should be authorized by this Section 2 (Inaudible) only to current years, its not safe transaction.

W. C. Arnold:

That’s the Attorney General’s argument as I understand it, and I thoroughly disagree with it.

Charles E. Whittaker:

(Inaudible)

W. C. Arnold:

Yes.

And if — I think that that’s a strain upon the — upon the wording the Act that it will not bear it as true, that municipalities and school districts have varying assessment periods and varying periods when the taxes are — their taxes are due and payable.

It does not appear in the record.

I questioned very, very much whether any of those periods occur before March 12th in the year.

I call your attention to that — that the journal entries that are set forth in this record and briefs of the parties show that this — this legislation was — was introduced in the early part of January.

That these amendments which were — were adopted in February so that the period that the Attorney General speaks about is 40 or 45 days, 50 days in January and in the early part of February.

I — I — it’s inconceivable to me that the Legislature could have had that brief period in mind.

As — as Your Honors know, tax is —

Tom C. Clark:

The whole year.

They want to stay the whole year of school district (Inaudible)

Then that would be saved under the section clause or clauses violated those that have levied taxes prior to March 15th of that current year will be saved until (Inaudible)

W. C. Arnold:

I think that those were alleged prior to March 15th throughout the life of a law, was what they were attempting to say.

Tom C. Clark:

I —

W. C. Arnold:

Now —

Tom C. Clark:

— understand your position.

W. C. Arnold:

Mr. Justice Clark, the tax is levied in 1952, in January of 1952 by the Act, or that became due in January — that were levied in 1952 were only coming due at this date if 1952 taxes were not due until February 1st.

Tom C. Clark:

They would be saying (Inaudible) —

W. C. Arnold:

Not under the — or one of the General Savings clause —

Tom C. Clark:

Yes.

W. C. Arnold:

— if — if you —

Tom C. Clark:

If you are levying.

W. C. Arnold:

— if you — under the Attorney General’s construction of — of the repealing Act that would be true.

But I do not believe that these statutes can be read in that session.

I — I believe that what — they say the tax that have been levied they — it’s a strain but the language won’t stand to read into it have been levied during this calendar year.

William O. Douglas:

Do you know of anything they levied after March, I know it’s not in the record, after March 15th.

(Inaudible) — do you —

W. C. Arnold:

No, no I wasn’t.

Sorry.

I — I think that generally — generally speaking July 1st is the — is the date that most of the municipalities and school districts use.

Earl Warren:

Mr. Arnold, one of the things that bothers me and this is that — on your Chapter 22, Session Laws of Alaska 1953, the original bill was entitled, “An Act to repeal Chapter 10, Session Laws of Alaska 1949 as amended by Chapter 88, Session Laws of Alaska 1949 and abrogating and repealing all accrued and unpaid taxes levied thereunder and declaring an emergency.”

Then there were several changes made as it went through and the title ended up this way.

An Act to repeal the Alaska property tax Act enacted by Chapter 10, Session Laws of Alaska 1949 as amended by Chapter 88, Session Laws of Alaska excepting from repeal certain taxes and tax exemptions, and declaring an emergency.

Now, if — if they intended to enact this law, according to your construction, why wouldn’t they leave in there and abrogating and repealing all accrued and unpaid taxes levied thereunder except?

W. C. Arnold:

Because Mr. Chief Justice, had they done so, they would have deprived the municipalities and the public utility districts of a good measure of their revenue both current and past.

The municipalities would not have been able to enforce the collection of any taxes levied during the life of this Act that were not paid on the date of the repeal as they’ve gone ahead with that wording.

Nor would they have been able to levy or collect them for the current year, which the legislature desired them to do.

Earl Warren:

Well why would they not under specific language, which abrogated and repealed all accrued and unpaid tax levies except those that you had just mentioned?

Why wouldn’t — why wouldn’t that be just as a — reasonable to do as to put the construction that you put upon this Act after the title has been changed because you get the same result that without it being in the — in the title?

W. C. Arnold:

Well, Mr. Chief Justice, I think they can done a better job in drawing this Act and title, I — I agree with that, and if they had adopted the wording, the title that you used, abrogating and repealing all taxes except those specifically saying by Section 2 (a) why — this controversy would not have arisen.

But they didn’t do that.

Earl Warren:

No, they didn’t but it show some significance to me when they started that way.

And in the original bill they spoke of abrogating and repealing all accrued and unpaid tax levies and then backed away from it and use something else.

It seems to me that that — that would indicate they — a change of mind on the part of the Legislature as to what they had intended to do when they — when they filed the original bill.

W. C. Arnold:

There’s no question but if there was a change of mind.

That they were bill, the authors of the bill proposed to abrogate all unpaid taxes and — and they so state it.

W. C. Arnold:

The legislature didn’t want to do that.

They wanted to save from that repeal, from the effect of the repeal, the taxes in the municipalities and public utilities and they changed the bill accordingly.

Earl Warren:

But my point — my point is that as — as the bill was finally enacted they don’t specifically say either in the title or in the body of the Act that they abrogate or forgive any taxes.

W. C. Arnold:

That’s correct.

Earl Warren:

Now the —

W. C. Arnold:

The law does that.

Earl Warren:

— that — that seems significant to me is they started out one way to do that and — and that I — I suppose was one of the things that — that caused controversy over the bill.

W. C. Arnold:

Not of course it’s what caused the controversy.

This bill —

Earl Warren:

— and then they end up without saying that.

W. C. Arnold:

This bill, like all bills in the legislature introduced in committee and was considering, it was amended several times.

Some of the proposals, the title changes only are — are carried in the legislative journals.

The tax to the bills and the amendments and the debate are not made a matter of record.

But it’s the bill as finally enacted which is — which we treat we are here today as this Court said and as the Circuit Court said.

This Court in Trailmobile Company versus Whirls, interpretation of statutes cannot safely be made the rest upon mute, intermediate, legislative maneuvers.

Now, I can’t say — I don’t — I’m not familiar with all the — the forces, the changes of view and the conflicts of opinion which went into the enactment of this law in its final form.

But it is clear, from this record and from an inspection of the legislative Journals, that the bill as originally introduced did not suit the majority of will of the legislature.

They did not want to abrogate for all taxes.

They wanted to save some taxes.

They changed the bill accordingly and they changed the title accordingly.

And — and we’re here now in an effort to construe the effect of that repeal.

And since under the rules of statutory construction as we understand them and as the trial on appellate court understands them, having saved some taxes it must be intended, that they intended to save no others.

Hugo L. Black:

May I ask you what would be the effect of the Act as you understand it if there had been nothing but Section 1?

W. C. Arnold:

If it only been Section 1 then the — the General Alaska Savings statute would come into full play.

Hugo L. Black:

And they could have collected taxes —

W. C. Arnold:

All of the taxes.

Hugo L. Black:

— that had been assessed prior to the repeal.

W. C. Arnold:

That’s correct.

Hugo L. Black:

Could they have levied taxes for any that had not been assessed prior to the appeal?

W. C. Arnold:

No.

W. C. Arnold:

They could not have taken any step under the Act to perfect a tax claim after —

Hugo L. Black:

They would’ve been bound by that.

W. C. Arnold:

That’s right.

Hugo L. Black:

Now, the original Act had provided, had it not, Section 3 of the Regional 1949 Act or a different in the treat of taxes in municipalities and school of public utility districts.

The Regional Act, Section 3 in 1949 created a different system, had it not?

W. C. Arnold:

Oh, the Regional Taxing Act, yes.

Hugo L. Black:

That’s right.

W. C. Arnold:

Yes, it provided a different system.

Hugo L. Black:

And under that system it was left to the district to make and assess that any time they saw fit and get through it at any time they saw fit.

Now, if — if the Act — if it only been Section 1 repealing, as I understand it, what date did it pass?

W. C. Arnold:

March the 12th.

Hugo L. Black:

What?

W. C. Arnold:

It became effective March the 12th.

Hugo L. Black:

March 12th.

W. C. Arnold:

The repealing Act.

Hugo L. Black:

On March 12th then the whole thing would have been over insofar as in the assessment of perfection of taxes was concerned, both throughout the entire territory and in the public utility district.

W. C. Arnold:

That’s correct.

Hugo L. Black:

But it was necessary if they desired to save for the remainder of 1953, the right to perfect the taxes by the utility district that they do what they did in Section 2 — of Section 2 (a), was it not?

W. C. Arnold:

They are —

Hugo L. Black:

They had to do that if they want to save that, didn’t they?

W. C. Arnold:

They had to do in the latter part of it, all which are levied and assessed during the current fiscal year of such municipalities.

Hugo L. Black:

Well yes, all right.

And they also wanted to make it sure, did they not, that as part as that — that that didn’t foreclose those taxes for that year.

They were treated differently, were they not, in both bills?

And the reason was that they wanted to leave it up to the utility districts and so forth.I believe the claim was made the case before that made the Act unconstitutional because it didn’t apply uniformly.

W. C. Arnold:

That’s correct.

Hugo L. Black:

But as this came out and what the State and the Territory insist on would mean, as I understand it, that they’re taxes for the entire Territory including the utility districts would be enforced and applied in precisely the same way if his argument is correct.

But if your argument is — if your — if they had not put this in, it would have been a matter toward forgiveness of any taxes where they have assessment had not been completed on March 12th, 1953.

W. C. Arnold:

Well, without Section 2 there could have been no taxes levied after March 12th.

Hugo L. Black:

Well, with section — that’s right, could have been non-levied.

W. C. Arnold:

Correct.

Hugo L. Black:

Therefore, they had to — if they wanted to let the utility districts get that part of the tax assuming now that they wanted to repeal the law and that the savings clause save the taxes that had accrued up for that time.

It would only have — that would only have been included in their taxes before.

W. C. Arnold:

Well, Mr. Justice Black, in my view, had they wanted to do that and that only, then the first part of Section 2 would not have been included because it would have been surpluses.

Hugo L. Black:

Why would it?

W. C. Arnold:

Because they — if they expected the taxes that are already levied and assessed to be saved under the general repeal statute, there would be no use for them to repeat themselves over again and say, again, that any taxes which have been levied and assessed.

Because under the construction that the counsel contend for and under the — Your Honor’s statements as I understand it, they’re duplicating, they would be duplicating the general repealing statute in that respect.

Hugo L. Black:

But if they had not included this, whatever be right as to your contention in here as to the prior years.

They had not included this and if one undoubtedly have cut off all these districts for the taxes by their levies had not been completed by March 12th of 1953.

Would it not?

Am I wrong?

W. C. Arnold:

It would have cut off if they — if they had not — if they had not included it then the taxes that were already levied on March 12th, 1953

Hugo L. Black:

By the districts.

W. C. Arnold:

By the districts, would have been saved under the general repealing Act.

Hugo L. Black:

But no others?

W. C. Arnold:

All to territorial taxes —

Hugo L. Black:

I mean, in the future.

W. C. Arnold:

No, no future taxes.

Hugo L. Black:

So that the utility districts and those who had not been — levy their taxes under the varying times in which they levy their taxes would have been barred from collecting the taxes at all.

W. C. Arnold:

They’d been barred from making future levies under this Act.

Hugo L. Black:

Although this entire Territory would not have been barred.

W. C. Arnold:

The Territory had no — no tax on — on the Act that was repealed.

Hugo L. Black:

Why did it —

W. C. Arnold:

(Voice Overlap) —

Hugo L. Black:

The Territory would not have been barred if they had repealed, merely repealed.

W. C. Arnold:

They would have been — the Territory would have been barred from making any additional levies, yes.

Hugo L. Black:

As to that.

W. C. Arnold:

That’s right.

Hugo L. Black:

But its levy had already been made, is it not?

In 1953?

W. C. Arnold:

No, no.

It’s not been made.

Hugo L. Black:

It had not been made.

W. C. Arnold:

No, it’s not.

Hugo L. Black:

When was it made, July?

W. C. Arnold:

It would have been — it would have been made the following December.

Hugo L. Black:

Following December.

Earl Warren:

And the Territory doesn’t claim any — any tax for 1953 other than for these special districts mentioned in subdivision 2, does it?

W. C. Arnold:

The taxes levied in these special districts are not the subject of this suit and the Territory doesn’t claim any of those either.

This —

Earl Warren:

Well —

W. C. Arnold:

— this suit is for taxes outside of the district.

Earl Warren:

But I mean, their position wouldn’t lead us to the conclusion that — that under those circumstances they — they could have levied any tax for 1953.

W. C. Arnold:

No, there’s nothing to indicate that the Territory —

Earl Warren:

Yes.

W. C. Arnold:

— claims any rights —

Earl Warren:

Yes.

W. C. Arnold:

— beyond March 1953.

Earl Warren:

Well, then —

Hugo L. Black:

I asked you the question because of your argument that the general rule is of the savings clause, especially saving, that indicates that that’s all it’s intended to be saved.

But if there’s another reason, that wouldn’t — general rule wouldn’t apply, would it?

W. C. Arnold:

I — my difficulty there Mr. Justice is that the other reason is derived only by changing the wording of the Act.

Hugo L. Black:

Well, is it — is it that the —

W. C. Arnold:

That in my view.

Hugo L. Black:

— the first Act — the first Act treated those two types of taxation differently.

The second Act comes along and does exactly the same time.

It takes a month specially, doesn’t it?

W. C. Arnold:

It allowed one to remain for the current year and the other one, it didn’t.

And I — I submit that in my view that had nothing to do with the collection of taxes accrued prior to March 12th either outside in municipalities or in municipalities except as they’re saved by Section 2.

And they saved them within municipalities having expressed their desire to save them there, under the rule of statutory construction it follows that they did not desire to save them anywhere else.

W. C. Arnold:

That’s my view.

Hugo L. Black:

Yes.

W. C. Arnold:

I — I know of no way to present this phase in the matter any clearer and to me, any more precise way, that it was treated by majority opinion in the — in the appellate court.

I — they have cited the general rules of statutory construction, the decisions of this Court, the rule established in the portal-to-portal cases.

The rule on repealing Act and Prohibition Act, one came from the Second Circuit and the other the Fourth, a long line of authorities in this Court supporting this type of construction.

Only recently, this Court through Mr. Justice Whittaker said, “However, inclusive may be the general language of a statute, it will not be held to apply to a matter specifically dealt with in another part of the same enactment.

Specific terms prevail over the general and the same or another statute, which otherwise might be controlling.”

So they made a specific reservation here.

William J. Brennan, Jr.:

May I ask, Mr. Arnold, would you — if this would be the same, we didn’t have this difficulty with subdivision (a).

In other words, the subdivision (a) and it’s read, “Any taxes that has gone away down, they are levied and assessed during the current fiscal year.”

That’s all there was in subdivision (a) (Inaudible)

W. C. Arnold:

Well, I’d be on pretty weak ground, I think.

If it read as I understand —

William J. Brennan, Jr.:

(Inaudible)

W. C. Arnold:

I — if I understand, Your — Your Honor to mean that the Act would read, “Any taxes which are levied and assessed during the current fiscal year by municipalities, school and public utilities —

William J. Brennan, Jr.:

That’s my (Inaudible)

W. C. Arnold:

I — I think that then the General Savings Act would apply.

William J. Brennan, Jr.:

But — but that there are (Inaudible) in which not to send a special savings clause, the principal word, they would not (Inaudible)

W. C. Arnold:

But Mr. Justice, as you — as you and I have amended the Act, it has purely prospective application.

It applies only to those things that happened after March 12th.

William J. Brennan, Jr.:

That leads me then to my next question, that you do (Inaudible) a heavy implication upon the language to any taxes would have been levied (Inaudible).

W. C. Arnold:

As retrospective, yes.

They — it is.

In my view it is retrospective.

William J. Brennan, Jr.:

(Voice Overlap) but I didn’t quite get that.

W. C. Arnold:

And in my view it can’t be read any other way and that’s the way this trial court and the Circuit Court read it.

William J. Brennan, Jr.:

In other words, what you’re arguing is now the exception (Inaudible), the savings clause, related as — relating as it does only to previously assessed taxes by municipalities, school or public utilities.

We read that way necessarily in that — the extent.

There is — what savings, that’s the extent of it but —

W. C. Arnold:

Save those taxes and none — none other.

William J. Brennan, Jr.:

(Voice Overlap) —

W. C. Arnold:

Now, if you read it prospectively, that’s something different again because the general savings statute has no prospective feature.

William J. Brennan, Jr.:

(Inaudible)

W. C. Arnold:

Well, it’s the question upon which this case was decided in the lower court and in the trial court, and the appellate court, the very question.

I — I think there was no other.

I think all these other things are — are extraneous, constitutional provision that the — the powers that heard by the Territory on my friend, the Attorney General.

I — I don’t think that they have much to do with this.

Charles E. Whittaker:

Mr. Arnold, I wonder if — if you and Justice Brennan have really amended the statute as you stated a moment ago.

If the comma were placed after the word “assessed” in the next to the last line, then all preceding would relate to the phrase “during the current fiscal year”.

And by the mere insertion of a comma at that point, would you not have a statute reading precisely as you and Mr. Justice Brennan discussed without any amendments?

Would it not make it clear?

W. C. Arnold:

I have to defer to Mr. Justice Brennan on that.[Laughter]

Charles E. Whittaker:

Well, then it would say any taxes which have been levied and assessed by any municipalities, school or public utility district, under the provision of Chapter 10, Session Laws of Alaska 1949 as amended, or which are levied and assessed “comma” during the current fiscal year of such municipality, etcetera, recited.

A punctuation is really no part of the language, is it?

And is to be put where it is necessary to be put to make the language consistent and sensible.

Another rule of construction?

W. C. Arnold:

Well, Mr. Justice, if the punctuation that you speak of changes the meaning of the Act, I — I think it — it’s quite immaterial.

Charles E. Whittaker:

If — if it changed the meaning of the Act.

But if tends only to make it clear then would it be changing?

And I don’t know that there’s anything to this at all.

I’m just thinking out loud.

W. C. Arnold:

Well, I — I read it the other way myself and I — I may be wrong, but the trial court and the appellate court agrees with me.

Charles E. Whittaker:

Yes.

W. C. Arnold:

I — so I — I’m not completely alone.

I — I don’t see —

Charles E. Whittaker:

You may be quite right.

I — I know, I just suggest this is a possible construction.

W. C. Arnold:

I — I’m not able to read it in any other fashion nor to read the background of it.

There was a controversy about what taxes should be abrogated and what taxes should be saved.

One bill abrogated them all.

Charles E. Whittaker:

Well, then how (Voice Overlap) —

W. C. Arnold:

(Voice Overlap) amended in the fashion so as to save them all.

That was the First Amendment, struck out Section 2.

Then they were all saved.

That didn’t suit.

Charles E. Whittaker:

You have to make though under your argument a savings clause out of Section 2, do you not, in order to use the principle that that which is specifically say it excludes the general?

W. C. Arnold:

I don’t think I make it my — my argument, Mr. Justice Whittaker.

I think it’s there.

It’s there in the Act.

Charles E. Whittaker:

You think it is a savings clause?

W. C. Arnold:

Yes.

And I think that the efforts of the Territory are to read it out of — out of the Act.

Mine is to — is to leave it and to have it — read what it says.

I think it says what it means and it means what it says.

Charles E. Whittaker:

Well literally it says, Section 1 says, “All Chapter 10 is repealed.”

Then come Section 2.

But it says, “Section 1”, which is the repeal, “shall not be applicable to (a).”

So — so far as (a) covers, Section — only Chapter 10 was not repealed.

Now that’s what it literally says, isn’t it?

W. C. Arnold:

Well now, Mr. Justice Whittaker, I don’t quite agree with that.

Here is what I think it said, what Section 1 says.

It says that all — that the Act is hereby repealed but that this repeal shall not have the effect of abrogating or curtailing any taxes previously levered under the Act.

Charles E. Whittaker:

Do you think that’s what it means?

W. C. Arnold:

I — what it says because by — by operation of the — of the Alaska Code and — and by the settled constructions in such cases, over constructions of such cases.

The Alaska general savings statute is to be read as though it were a part of this repeal.

It’s to be read as a part of and that’s what it says.

It says that this repeal shall not abrogate any taxes due on the repeal date.

But the legislature didn’t want it that way.

So they said that some taxes should be saved but not all.

Hugo L. Black:

Can I ask you, Mr. Arnold, about one rule of construction invoked by the Attorney General?

Hugo L. Black:

You haven’t discussed it and maybe you think it has no merit deserves.

He takes the position that the Act here precluded was actually construed would lead to an unconscionable result.

And many courts have said that if one construction leads to an unconscionable result, that you should try to find another — you would try to find another.

Did you —

W. C. Arnold:

Is that —

Hugo L. Black:

What do you say about that?

W. C. Arnold:

This Court followed it.

The Attorney General’s conclusion in that — in that respect it would overrule dozens of decisions of this Court and thousands of decisions of state courts and — and under the common — English common law.

That is the rule that when a taxing Act is repealed, no — a liability exists to pay the taxes that have not been collected as of the date of the repeal.

Now, this is the unconscionable result which the Attorney General talks about because the repeal cuts off the unpaid taxes and does not refund the taxes of those who paid prior to the repeal.

It has been — as a law of this country since the adoption of the Constitution came here from England.

I — I —

Hugo L. Black:

You say that the rule he invokes doesn’t apply here because the results cannot be unconscionable.

W. C. Arnold:

Well, if it — if it’s unconscionable then in the thousands of cases that had been decided in this country and many by this Court, that feature has been overlooked.

Now, taxes are not a contractual obligation.

They’re purely involuntary.

Nobody has any duty to pay taxes except if that duty is imposed upon him by law.

And when that law is repealed, the duty to pay the taxes disappears.

And there’s nothing unconscionable about that or it’s never been so considered in our system of Government, and that’s what occurred here.

Now, while this is not in the records, the Attorney General in his brief says that 8000 people paid taxes under this — or 11,000 people paid taxes under this Act, 8000 people didn’t.

Now — as of the date of the repeal.

Hugo L. Black:

Is that correct?

W. C. Arnold:

Well, I — I don’t know but I — I don’t — I don’t think the Attorney General would say so if it weren’t correct.

I don’t have any — any way of testing it but I assume that it is correct.

So that some people elected to pay the — some people elected to pay these taxes while the tax commissioner was in — under injunction from collecting them or enforcing their collection upon the ground of the problem, in the validity of the Act.

Others elected to pay due out to other stages of this litigation which existed in the entire life of the Act.

At some stages, the Territory refused to receive taxes that were proferred under Act because they said the matter was in litigation, they didn’t want them.

Now, then the legislature repealed the law.

8000 people have paid 400 — I guess, I get it twisted — 11,000 people had paid $400,000.8000 people owed a $1,200,000.

Now, the — the Attorney General’s argument is it would be unconscionable for the legislature to pass such a law, and if they did pass such a law it would be the duty of this Court to strike it down.

Hugo L. Black:

They argue that on constitutional provision.

W. C. Arnold:

That’s correct.

And there is no support for that argument in my — in my judgment, none at all.

Now, in this —

Earl Warren:

Is there any authority that you know Mr. Arnold where to the effect that that can be done.Have you — have you run across any cases to that effect?

W. C. Arnold:

That they can do it?

Earl Warren:

Yes.

W. C. Arnold:

Yes.

We’ve cited with the footnotes in the briefs, a hundred or more in the briefs here —

Earl Warren:

(Voice Overlap) the same —

W. C. Arnold:

— including some themes of this Court —

Earl Warren:

But are the in the same posture as this case?

W. C. Arnold:

Yes, many of them.

Many of them are in the — in the Portal-to-Portal Act, the same type of question arose.

The same attack was made that this cutoff claims, some of which had been paid and some of which hadn’t, that the — that had reached this Court, certiorari was denied.

The constitutionality was attacked and the Act was declared valid by the Circuits.

Same result was reached in a — in many state cases which we have cited, on the reference to on our brief, very exhaustive notes in the matter.

Earl Warren:

But here we have — here we have a statute to levying a tax that has gone through to the Highest Court, and the Highest Court has determined it is valid.

And 8000 people or 11,000 people have paid that tax.

And then the legislature comes along, and according to your theory, relieves the rest of them from their obligation to pay those unquestionably valid taxes.

Do you have any — any specific case in mind that under those circumstances holds that the legislature can do that without violating constitutional principles?

W. C. Arnold:

Yes, Mr. Justice, and they’re cited in our brief but I would call your attention.

In fact, that the decision holding this Act to be valid, property tax to be invalid was handed down a year after the legislature repealed the law.

A year after the legislature repealed the law.

And a part — and a very large part — as you and I can see of this $400,000 that you paid was paid after the repeal by people who — who for one reason or another, voluntarily or otherwise, continued to make the payments.

Now, we thought the tax is no longer in existence.

We advised our clients not to pay them.

Others took a different position.

For over a year or more, a year-and-a-half, court was enjoin — the Court has enjoined the collection of these taxes, some people continued to pay them during that period.

That was their right.

W. C. Arnold:

But we don’t think it prejudice, the position of those who — who elected not to pay them until uplifting was finally determined.

I haven’t said anything about this House Bill 3 and 5.

The Territory specified the refuser — refusal of the trial court to receive these documents in evidence during an oral argument on a motion to dismiss as prejudicial error.

This case was never tried.

It never opened for the reception of evidence.

The motion to dismiss was granted upon the ground of no personal action would lie to collect these taxes and upon the further ground that the tax did not survive the repeal.

During the course of that argument the Territory attempted to introduce these documents as evidence and they were rejected.

That rejection was specified as error to the — to the Circuit Court.

The Circuit Court held that it was not error and by inference, with which I agree, they said that the result would be the same in any event.

And that they would assume that the title of the bill is shown in the Journals, showed their purpose.

And after denying it was error they said that — they went ahead to consider the bills arrived at the same conclusion.

I’m not able to tell from this record whether the Territory seeks to have this Court reverse upon the ground of error or to receive evidence —

William J. Brennan, Jr.:

Well tell me —

W. C. Arnold:

— in this argument and I don’t think it makes too much difference.

William J. Brennan, Jr.:

Do you think we might appropriately or properly, whatever may be the record below, consultant for such value as they may supply in the interpretation of Section 2?

W. C. Arnold:

I agree with the Circuit Court that the Journals are — can be judicially noticed.

They show the titles to these bills.

They show the amendments, the text to the amendments, as they were offered.

I agree with the Circuit Court that when you consider those things that are in those Journals, you consider everything the same as though you have the bills before you.

There isn’t enough difference to — to influence the ultimate decision of this case.

But I — I —

William J. Brennan, Jr.:

My question was whether you thought it would — inappropriate for us to do precisely that in examining the questions, inspections —

W. C. Arnold:

I — I think it’s inappropriate for — for this Court to — to receive evidence at this posture of the case.

If the trial court was in error in rejecting this evidence, well then, the case should be reversed upon that ground.

I don’t think, however, the matter by a material.

I — I think again about the same answer.

Now, I called attention of course the fact that these are personal actions.

The trial court held that no personal action would lie to collect the tax such as this that was leaning on the property, was a special provision for collection provided in the Act that the remedy was exclusive and that no personal liability existed.

The Circuit Court didn’t reach that question because it found that the tax didn’t survive.

William J. Brennan, Jr.:

I still don’t get it Mr. Arnold whether you do or don’t object (Inaudible)

William J. Brennan, Jr.:

The general emphasis and everything they contend.

W. C. Arnold:

Well Mr. Justice, I — I feel that it would be inappropriate for this Court to consider evidence not available to the trial court.

William J. Brennan, Jr.:

I can understand that, I wasn’t sure.

Hugo L. Black:

I understand that but I — I’d like to know, do you think that’s a question of evidence, a question of judicial knowledge.

I — I had supposed that every court everywhere could take judicial knowledge of a bill.

Do you deny that this the proper bill (Inaudible)

W. C. Arnold:

No, I don’t deny this as a proper bill, Mr. Justice Black but if — if these are to be noticed because they’re presented, there are dozens of other bills repealing this Act, dozens of other versions.

Hugo L. Black:

Have you some more to which you wish to call out (Voice Overlap) —

W. C. Arnold:

If this matter now —

Hugo L. Black:

— judicial notice, knowledge?

W. C. Arnold:

If this matter is to be tried on that issue —

Hugo L. Black:

I’m not talking about trying.

I’m talking about considering the constitutionality of the law.

And we constantly take judicial knowledge of the — of the bill with all sources (Voice Overlap) —

W. C. Arnold:

Well, Mr. Justice —

Hugo L. Black:

— and everything else.

W. C. Arnold:

I think you take judicial knowledge of — of the records of the Congress and of the agencies, but these are not of those records.

These are supplied by the Attorney General —

Hugo L. Black:

Well, that’s — that’s the way get them nearly all the time, one of the litigants supplies them.

William J. Brennan, Jr.:

Or we find them ourselves.

Hugo L. Black:

That’s the way they come to us.

W. C. Arnold:

I’m not trying to deny the rule of — of judicial notice.

I merely say that the — and I — and it — this — the trial court did not commit error when it refused to accept evidence offered in the Court for —

Hugo L. Black:

I can —

W. C. Arnold:

— oral argument.

Hugo L. Black:

— I can agree with you on that.

I don’t think it’s a question of evidence.

I think it’s a question of judicial knowledge.

But, are you taking a position that we cannot take judicial knowledge of the bills that were offered in this connection.

I’m not talking about the evidence question.

Hugo L. Black:

That to me is — I’m just speaking for myself but I think nothing to it.

W. C. Arnold:

Yes, it is my position that these records are not of the kind nature of which judicial knowledge can be taken, that proof must be supplied and a proof must be supplied while the question of this appropriateness under the rules of evidence arises.

Hugo L. Black:

Did you tie the constitutionality of Act?

Do you think we’ve got to go get evidence offered as to what the history of the bill?

Or decide — to decide the interpretation of it.

Do you think you’d have to get evidence of its history rather than just take judicial knowledge of it?

W. C. Arnold:

You can take judicial knowledge of — of the recorded history of the Act, yes.

I don’t agree, Mr. Justice that — that judicial knowledge and evidence are the same thing.

Judicial knowledge dispenses with evidence.

Hugo L. Black:

That’s right.

I agree to that.

I just don’t understand why that the oldest controversy with the introduction of this as evidence, going on the theory that you have to have evidence.

W. C. Arnold:

Well —

Hugo L. Black:

A bill that take place as you pass a bill to the legislative body.

W. C. Arnold:

Well, I can explain how the controversy arises.

The bills were offered in the course of an oral argument in the trial court.

The Court said that he could — would not receive evidence, he would not accept them as evidence but they would judicially notice the legislative journals and published records.

The Territory specified that as error and sought to reverse the trial court upon that ground in the appellate court and they seek the same result here.

This is an effort on their part —

Hugo L. Black:

But I understand (Voice Overlap) —

W. C. Arnold:

— to send this case back —

Hugo L. Black:

(Voice Overlap) — what I — what I said was I couldn’t understand why so much arguments should be made or whether or not a bill to the part of legislative record was offered.

I don’t — I don’t understand it.

I — we never — I don’t recall having seen anything like that here before.

Maybe it’s —

W. C. Arnold:

Well, I don’t think that you properly entertained the argument on a case or an offer was — an effort was made to introduce evidence during an oral argument.

Hugo L. Black:

To — to me it’s just like offering to prove that an Act of Congress as a piece of evidence when somebody gives it a — signs of error, the fact that it — they decline to admit it in evidence.

W. C. Arnold:

Well, that’s — that is one — you — that is a record of the Congress that you can judicially notice.

The Territorial legislature doesn’t keep that kind of a record, if its actions.

It only keeps a record of the bills that it finally enacts.

William J. Brennan, Jr.:

Well, whatever record they do keep bearing on our question Mr. Arnold, is this the complete record here?

W. C. Arnold:

No, definitely not.

William J. Brennan, Jr.:

What would the — what’s missing from it?

W. C. Arnold:

Well, this matter was before two or three sessions of the legislature.

There must have been 12 or 15 bills introduced at — at various times.

William J. Brennan, Jr.:

You mean in other sessions?

W. C. Arnold:

Yes, and in this session and other amendments offered, and committee hearings, and debates.

William J. Brennan, Jr.:

Well, I know —

W. C. Arnold:

Now this — this is — this is just a little segment of —

William J. Brennan, Jr.:

— a little late for the —

W. C. Arnold:

If you’re to go outside of the published record, why then I don’t know how far you go but then is just —

William J. Brennan, Jr.:

Well, I’m asking — I’m asking —

W. C. Arnold:

— a little segment of it.

William J. Brennan, Jr.:

I’m asking only of the published record, whatever is the official record of the Territorial legislature.

W. C. Arnold:

I have no reason to believe that this is an official record of the — of the Territorial legislature.

And I hasten to say that I don’t doubt the veracity of the Attorney General either.

I don’t know where he got it.

I wouldn’t know where to get it.

William J. Brennan, Jr.:

But there is a certificate (Inaudible) — has the certificate of some territorial officials, I remember it, that this is the record, we can’t find it offhand, I saw it earlier.

W. C. Arnold:

Well, I’m sure that it’s not a part of the records of the Territorial legislature.

I — I’m sure of that.

Hugo L. Black:

Do they not keep records of the bills and the amendments?

W. C. Arnold:

The bills that are enacted in the law and they keep record of amendments offered on — on the floor of the House in a published Journal.

Hugo L. Black:

These were enacted into law, was it not, as amended?

W. C. Arnold:

No.

Oh, as amended, yes, but these bills were not enacted into law.

Hugo L. Black:

Are they — it was not the bills that — if so, (Inaudible) legislated by the year the numbers of bills, if they had numbered these bills are they the ones that finally passed —

W. C. Arnold:

House Bill 3 —

Hugo L. Black:

— (Voice Overlap).

W. C. Arnold:

— with amendments was enacted into law but not — but this version here is not — was not enacted into law.

Earl Warren:

No.

But if there’s the — if there’s a signature of the — the Secretary of Alaska and the seal of the Territory, isn’t that not — to indicate that it’s a document of the Senate?

W. C. Arnold:

Well Mr. Justice, I have never indicated at all and I thought it was a forgery or — or spurious in any fashion.

But now, I don’t — if I seek to get the Secretary of Alaska to give me a copy of some document in his office and affix his seal, do I understand then that this Court could take judicial notice of that document?

Hugo L. Black:

Why not?

Earl Warren:

If it’s a public document, why not.

W. C. Arnold:

Well I — I — I have — I have never heard or I know of no recorded case where — where the rule of judicial knowledge is — has — has extended that far.

This Court frequently refuses to recognize or — or consider debates from the congressional record.

They are official documents, too.

Hugo L. Black:

It’s not on the ground if we don’t know about it or we can’t consider it.

Sometimes the Court refuse to consider it as having anything to do with it to say, we won’t vote, we don’t need to go through it.

I don’t recall —

W. C. Arnold:

Well —

Hugo L. Black:

— why (Inaudible) — turns out on the ground that we could judicially notice it.

W. C. Arnold:

This Court has repeatedly held that in this type of — of matter, Mr. Justice Black.

That — and this is just — I read this a while ago, just a sense, but there are several other decisions.

Interpretation of statutes cannot safely be made to rest upon mute, intermediate legislative maneuvers.

Hugo L. Black:

Well, I —

W. C. Arnold:

In other words that these questions are —

Hugo L. Black:

That doesn’t touch the question here.

What you are reading on to some — and then some cases it said, we will not consider the legislative history.

And I do not recall maybe — maybe it has been done.

I do not recall this Court has ever held that you have to have evidence at all for the — about the things that take place in the legislative body when you have the certificate of the official who keeps them.

W. C. Arnold:

Well, I — I wanted — my time is up and I close only this way.

But I — I certainly would not like to be understood as agreeing and I think this Court ought to accept and receive, and consider documents here which the lower court rejected.

Now, let’s say the lower courts erroneously rejected them, then the case should be reversed upon that ground in my view.

Hugo L. Black:

Do you think that would be harmless error if they had done that?

If it’s error — let’s suppose it’s error, do you mean to say that this — that’s so important in connection or whether this is a good record and whether we can consider it?

That this case ought to be reversed on that ground if it was wrong, not to let it come in?

W. C. Arnold:

That question should be addressed to the Attorney General because he comes here asking that very thing.

W. C. Arnold:

He asks you to reverse these courts upon the ground of error committed below in that respect, we don’t ask it.

We don’t think it makes any difference.

We think that if you consider the bills, consider the titles, you considered everything.

We don’t think it makes any difference at all.

The Circuit Court in their decisions that they wouldn’t — they would consider the bills because they were the same as the titles.

Charles E. Whittaker:

Mr. Chief Justice, might I ask just one big question?

Earl Warren:

Yes, of course.

Charles E. Whittaker:

Would you please tell me, is it agreed by counsel on both sides that this whole statute, Chapter 10, did not impose a personal liability but only leans upon physical properties?

W. C. Arnold:

I think the answer to that is no, Mr. Chief Justice.

That is our position and that was the position of the trial court below.

I — it’s my understanding that the — the Attorney General argued below — he did argue below and it’s my understanding that he maintains the position yet that there is a personal liability.

Charles E. Whittaker:

I see.

Earl Warren:

Thank you.