Territory of Alaska v. American Can Company

PETITIONER:Territory of Alaska
RESPONDENT:American Can Company
LOCATION:U.S. District Court for the Southern District of New York

DOCKET NO.: 40
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 358 US 224 (1959)
ARGUED: Dec 09, 1958
DECIDED: Jan 12, 1959

Facts of the case

Question

  • Oral Argument – December 09, 1958 (Part 2)
  • Audio Transcription for Oral Argument – December 09, 1958 (Part 2) in 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

    Earl Warren:

    Number 40, Territory of Alaska versus American Can Company, et al.

    You may — you may proceed, Attorney General Williams.

    J. Gerald Williams:

    Mr. Chief Justice, members of the Court.

    The question that arises in this case is whether or not the Territory of Alaska may continue to collect taxes from delinquent taxpayers after the taxing statute has been repealed.

    In 1949, for the first time, the Legislature of the Territory of Alaska passed a general property tax.

    This was Chapter 10, Session Laws of Alaska, 1949 and it places or placed a 1% or 10 mills levy on all real and personal property within the entire Territory of Alaska.

    Now, there were some peculiar modifications of the peculiar aspects of Chapter 10, Session Laws of Alaska.

    For instance, the Act provided that municipalities, school districts, and public utility districts could keep the tax.

    Now, many of the cities at that time were levying — levying 20 mills, and the school districts and — school districts and public utility districts, generally, 8, 9 to 10 mil.

    It was the position of the Territory of Alaska and has been that the first 10 mills that every city levied — was levied under Chapter 10, and the Act provided that they could keep that 10 mills.

    Now, I — I point that out because it will become apparent to you, later on, as I argue about Chapter 22, Session Laws of 1953, which repealed Chapter 10, Session Laws of Alaska in Section 1.

    But in Section 2 (a) of the Act, it does not repeal Chapter 10, Session Laws of Alaska, 1949 as to municipalities, public utility districts, and school districts until the end of the fiscal year of 1953.

    Now, they didn’t say calendar year, they said fiscal year.

    And I assume that that was put on because of the different — municipalities had different fiscal years.

    But for all practical purposes it would be for the calendar year 1953.

    Now, this Chapter 10, Session Laws of Alaska has had a long and checkered career through the Courts of Alaska.

    I’ve been Attorney General now for almost 10 years and it’s practically been my whole career, Mr. Chief Justice.

    Shortly after the Act was passed, William Hess, a mining man in Fairbanks, Alaska brought an action against the Territory, filed this action in the Fourth Division District Courts sought to enjoin Mr. Mullaney, the Tax Commissioner, from enforcing this Act.

    A preliminary injunction was granted by Judge Kraft on the 30th day of January, 1950.

    Then that — that preliminary injunction was made permanent by the same court on June the 19th, 1950.

    On May the 10th, the Territory then took an appeal to the Ninth Circuit Court of Appeals in San Francisco.

    And on May the 10th, 1951, the Ninth Circuit Court said that the taxpayer had sought the wrong remedy.

    He had an action of law that he should have paid his taxes and sued for a refund.

    So, on June the 8th, 1951, Mr. Hess, having paid his tax, again filed another action to the District Court of the Fourth Division for the return of the tax.

    Territory moved for change of venue.

    The case was transferred to the First Division.

    And on February the 18th, 1952, the District Court for the First Division of Alaska held that Chapter 10, Session Laws of Alaska, 1949 was a valid taxing statute.

    The taxpayer then took an appeal to the Ninth Circuit Court, on August the 4th, 1952.

    On May the 25th, 1954, more than a year, Your Honors, after the Legislature of Alaska had repealed Chapter 10, Session Laws of Alaska, 1949, by Chapter 22, Session Laws of Alaska, 1953.

    We got our decision from the Ninth Circuit Court affirming the District Court’s holding that this was a valid taxing statute.

    J. Gerald Williams:

    Up until that time the Territory collected some $400,000 and under this taxing statute.

    There left as near as we could estimate some million and a quarter dollars remaining from taxpayers.

    That said portion which would go to the Territory.

    So we — my office decided that we would then start to try to collect this by suits since the taxpayers were not voluntarily paying.

    We chose eight companies.

    We filed eight separate actions seeking a total of approximately $175,000 in taxes, interests, and penalties.

    And it is the consolidation of those cases which is now before the Court.

    We filed these cases or these suits in April and May of 1959.

    On the taxes were for the years 1949, 1950, 1951 and 1952, not for all taxpayers for all years but all years where covered by suits against some of the taxpayers.

    On June — on January the 4th, 1956, the District Court at Juneau dismissed the Territory’s complaints, first, on the ground that no personal action would lie.

    And second, that the tax did not survive the repeal.

    On February the 7th, 1956, the Territory appealed the case to the Ninth Circuit Court.

    On November the 14th, 1956 at a hearing before the Ninth Circuit, the Court decided that they had no jurisdiction for the reason that the Court, in the opinion of the Ninth Circuit Court, had failed to enter a final judgment.

    So on December the 11th, 1956, the District Court in Juneau did enter what was then considered a sufficient final order.

    And the Territory took a new appeal to the Ninth Circuit Court on — on June the 27th.

    And on June the 27th, 1957, the Ninth Circuit Court, by a two-to-one decision, held that Section 2 — yes, Section 2 (a) of Chapter 22, Session Laws of 1953, forgave the taxes, wiped them out.

    That there was no tax liability left and that we could not collect the tax.

    Then of course, the Territory filed a petition for rehearing and pointed out to the Court, this petition is filed April the 7th, 1958, and pointed out to the Ninth Circuit Court that should they let that decision stand, it would be in violation — Chapter 22, Session Laws of Alaska, 1953, would be in violation of the constitutional privileges afforded citizens under the Fourteenth Amendment and also, it would violate the requirement of uniformity of taxes as set forth in Section 9 of the Organic Act which is the Constitution of the Territory of Alaska.

    Petition for rehearing was denied and certiorari — a writ of certiorari filed and certiorari granted by this Court on April the 7th, 1958.

    I think I misquoted the date here to you just a minute ago.

    The — our petition for rehearing was denied on December the 4th, 1957.

    Now, let us look closely at this language of Chapter 22, Session Laws of Alaska, 1953.

    You will find it on page — set forth in full on page 5 of petitioner’s brief.

    William O. Douglas:

    What does that — the words during — during the current fiscal year?

    Was that — what year was that?

    J. Gerald Williams:

    1953.

    William O. Douglas:

    1953.

    J. Gerald Williams:

    Yes, 1953, Your Honor.

    William O. Douglas:

    And they — and the repealing — the date of the — of this Act repealing —

    J. Gerald Williams:

    March the 12th, 1953 and it carried an emergency clause.

    William O. Douglas:

    March the 12th, 1953.

    J. Gerald Williams:

    Yes.

    And —

    William O. Douglas:

    When are taxes usually assessed in Alaska?

    J. Gerald Williams:

    You — you will notice in the — in the — if you look in our appendix on page 9 of Appendix A in our brief, Returns, Section 7, the first year they had — the returns were on the 15th of July and the — after that on the 15th day of March.

    So a — returns would have had to have been filed on the 15th day of March 1953 or three days after Chapter 22 went into effect.

    William O. Douglas:

    And this repealing — this Section 2 (a) permits that the tax to be levied for that year, 1953, even though the tax has been repealed.

    J. Gerald Williams:

    Only in municipalities, school districts and public utility districts.

    It does not permit it to be levied in the bulk, the great bulk of Alaska, the — the so-called rural area.

    William O. Douglas:

    And I suppose your argument is that’s limited, that 2 (a), that — that — that’s the purpose of 2 (a).

    J. Gerald Williams:

    That is.

    If it is not truly, it is that the majority — well, I guess the entire Court in the Ninth Circuit and we in our briefs keep calling this a special savings clause or — or saving clause.

    We — we were chastised a bit by the Ninth Circuit in the majority opinion for saying savings clause.

    Well, there shouldn’t be an “s” on that.

    I guess it should be saving clause, although I noticed from the — in the minority opinion of Judge Healy, he reverts back to the savings clause, probably lead there by the errors in our brief.

    But it isn’t truly a saving clause.

    It creates — it — it creates a new right.

    It creates a new right for the cities, the school districts and the public utility districts to collect taxes under Chapter 10, SLA, 1949 for the year 1953 only.

    And the reason for that is set out in — in Judge Healy’s dissenting opinion.

    He tells you very, very clearly the — the reason for that is —

    What is that?

    You say very clearly, (Inaudible) he didn’t tell us –[Laughs]

    J. Gerald Williams:

    Well, I — I suppose, Your Honor, that I’m prejudiced to — whenever the dissent is with me I always seem to appreciate it a little more — remembering back to seven years ago, Mr. Justice Clark, when you dissented.

    Page 91 of the record, Your Honors, it starts at the bottom of page 90, and this is Judge Healy speaking.

    “There was a logical reason for granting this right to these local districts.

    In that the Legislature may well have felt it undesirable to interfere with their current fiscal programs whether or not the levies made for that year had yet been made.”

    And, Mr. Justice Whittaker, you see, the reason why I think it is so important and of the reason why in 1953 I thought it was important for the Senate Finance or Senate Judicial Committee — I think it was that finally put this amendment into it.

    The reason I felt it was important was because under — under my theory of Chapter 10, Session Laws of Alaska, the first 10 mills that was levied by a city during this period 1949 to 1953 was levied under Chapter — under Chapter 10, 1949, Session Laws, 1949.

    Now, if the Legislature wiped out that authority to levy that tax, here, the municipalities would be caught without any authority to levy that first 10 mills that they levied 20 mills for the first 10 under Chapter 10, the other — the second 10 mills under their own taxing statutes or ordinances.

    And it would have created financial havoc among the cities.

    J. Gerald Williams:

    And that was the real reason.

    Now, it — it probably wouldn’t appear that it would probably have been much simpler if we’d just let it go the way the House amended it and struck out, and left Section 2 out entirely.

    Now, let’s look then at Section 2 (a) of Chapter 22, Session Laws of Alaska, 1953, is found on page 5 of our brief.

    After the title, we see that Section 1 provides that Chapter 10, Session Laws of Alaska, 1949, as amended.

    That amendment is not pertinent Your Honors because it applies to both.

    Chapter 10 is hereby repealed.

    Now, we move —

    William J. Brennan, Jr.:

    (Inaudible) Mr. Attorney General, I gather that’s as far as the Act has gone, your position is that there’s been are no question of the right of Alaska to recover these delinquent taxes for the previous year.

    J. Gerald Williams:

    No question at all, Justice Brennan, because our — our general saving statute, Section 19-1-1, Alaska Compiled Laws Annotated, 1949, would have — would have permitted us to collect.

    That — that Section, that saving — that — our general savings statute, you’ll find it in our brief here, Section 19-1-1.

    There have been no question — no question at all.

    I don’t believe that any taxpayer would have — would have questioned the right then of the Territory who brought this suit.

    Now, let’s look at — at Section 2.

    Section 1 of this Act shall not be applicable to (a).

    Any taxes which have —

    Earl Warren:

    Where are you reading it from?

    J. Gerald Williams:

    I’m reading now on page 5, Your Honor, of the brief.

    Earl Warren:

    Of your brief.

    J. Gerald Williams:

    Yes, its page 5 of —

    Earl Warren:

    Thank you.

    J. Gerald Williams:

    — of petitioner’s brief.

    Earl Warren:

    Yes, I have it.

    J. Gerald Williams:

    You have it.

    “Any taxes which have been levied and assessed by any municipality, school or public utility district under the provisions of Chapter 10, Session Laws of Alaska, 1949, as amended, or which are levied and assessed during the current fiscal year.”

    Now, see what it’s says up to this point?

    It says any taxes which have been levied or are levied during the current fiscal year because some of the levies would have been made prior to March at the time this repeal went through the Legislature of such municipality, school and public utility districts.

    So that — that is our position entirely, Your Honors.

    Now, (b) we you don’t need to — we don’t need to be concerned about (b) because it saves — it saves the exemptions, industrial incentive exemptions granted the corporations under Chapter 10, Session of Laws of Alaska, 1949.

    It’s not pertinent to our argument here.

    But this is the crux of the whole case, Your Honors, as what is the meaning — what does the — what did the Legislature of the Territory of Alaska intend to do when they passed Section 2 (a) of Chapter 22.

    J. Gerald Williams:

    And it is our opinion and I’ll admit the language is not too clear because you can — you can — you can read it and Justice Healy in his dissent points out that it is ambiguous, but why isn’t this — why isn’t this a reasonable way to read this statute, “Any taxes which have been or which are levied and assessed during the current fiscal year”?

    Hugo L. Black:

    What about it?

    J. Gerald Williams:

    Then — then that would be — that would be which have been or are levied during the current fiscal year.

    Then you can’t say it —

    Hugo L. Black:

    (Inaudible) what’s the consequence that they have been or maybe, what do you say is the consequence of that?

    J. Gerald Williams:

    If — if that is true, then — then this Act does not apply to — to taxes levied in 1949, 1950, 1951 and 1952, has no applications to taxes levied and assessed by municipalities, school districts, and public utility districts during those four years, Your Honor.

    Charles E. Whittaker:

    I don’t understand.

    (Inaudible)

    J. Gerald Williams:

    Oh, Mr. Justice Whittaker, if it is our position that –that Section 2 (a) of Chapter — of the Chapter 22 of 1953 applies only — and he’s talking only about the 1953 levy and assessment of taxes under Chapter 10, Session on —

    William O. Douglas:

    If it is only to the (Inaudible)

    J. Gerald Williams:

    If —

    William O. Douglas:

    Yes.

    J. Gerald Williams:

    If only, yes.

    It is.

    It does not apply to taxes levied and assessed in 1949, 1950, 1951, and 1952.

    William J. Brennan, Jr.:

    And you’d say they’d be saved by the general saving clause.

    J. Gerald Williams:

    They’d be saved — yes, Your Honor.

    They’d be saved by — by 19-1-1, Act of 1949.

    And you’ll notice in the — in the majority opinion of the Ninth Circuit.

    They — they say — they treat this Section 2 (a) as a special saving clause.

    They say the special saving clause here overrides our 19-1-1, our general saving clause.

    Therefore, they — they say that we are precluded from collecting any delinquent taxes.

    And you see the position — the position that puts us in or — or look at the — look at the — at the —

    William J. Brennan, Jr.:

    Well let me see if I get that, Mr. Attorney General.

    Is the idea that because there is a special treatment of what it saved under Section 2, Section 1, nothing else to say, is that it?

    J. Gerald Williams:

    Yes.

    William J. Brennan, Jr.:

    And that’s the interpretation of the majority?

    J. Gerald Williams:

    Yes.

    William J. Brennan, Jr.:

    Well then tell me, have we here anything more than a question of interpretation of your territorial laws?

    J. Gerald Williams:

    Yes, you have.

    J. Gerald Williams:

    You need not have, but you could have.

    William J. Brennan, Jr.:

    Well, that — what — what troubles me, don’t we usually treat interpretations of your territorial laws by the Ninth Circuit Court of Appeals much as we treat the interpretations of state laws by State Supreme Court?

    J. Gerald Williams:

    I — I think not, Your Honor.

    I — I think not.

    I’m thinking now of the Jenkins case which we had here in — in April of this year.

    William J. Brennan, Jr.:

    The Workmen’s Compensation?

    J. Gerald Williams:

    Workmen’s Compensation.

    I can’t think — that was — that was truly just the interpretation of the last Workmen’s Compensation Act.

    William J. Brennan, Jr.:

    Did we overturn the interpretation of the Court?

    J. Gerald Williams:

    Yes, you reversed — you reversed the — the Ninth Circuit.

    I — I argued that case en banc the Ninth Circuit, and I think if I recall it correctly, they were seven-two against me.

    And if I remember here, I think that this Court was eight — reversed it by an eight-to-one decision.

    That’s my recollection at the present time.

    William J. Brennan, Jr.:

    Well, there is a second question, was attached to this question?

    J. Gerald Williams:

    If you follow — if you follow the interpretation of the Ninth Circuit Court in the majority opinion, if you follow the majority’s opinion, then you must strike down this repeal.

    And, of course, that would mean then that we would be burdened with collecting this tax not only for 1949, 1950, 1951 and 1952, but we’d also be burdened with collecting for 1953, 1954, 1955 and right on up to date because the — if the repeal is unconstitutional, then the — the Act would — would still stand.

    But the repeal is only unconstitutional — yes, Chapter 22 is only unconstitutional if you give it the construction that the Ninth Circuit gave it.

    Then it violates the Fourteenth Amendment and the — and — and Section 9 of our Organic Act.

    William J. Brennan, Jr.:

    Well, now that’s you state, what happened?

    J. Gerald Williams:

    I — I don’t think under the — under the holding of — under the holding of — of Anderson versus Mullaney, a case which I argued before this Court in 1952, 343 U.S. 415, and Justice Frankfurter wrote — 342 U.S., 342 U.S. 415.

    It was Justice Frankfurter’s majority opinion there held that — that the Constitution under — under Section 3 and — and 9, I believe, of the Organic Act that the Constitution applies to the — to the Territory as well as to a sovereign State.

    Now, it was under the — it was under Article 4, Section 2 of the Privileges or Immunities Section of the Constitution that that case arose.

    But I think that the — the situation is probably the same.

    At least it’s our — it’s our position, Your Honor, that — that the Fourteenth Amendment applies to the Territory now.

    We — we didn’t cite — we didn’t cite the — I’m — I regret we didn’t cite Mullaney or Anderson — was it — Mullaney versus Anderson to you in our reply brief.

    But it gets very strong logic and strong presence for our position that the Fourteenth Amendment would apply.

    And of course the —

    William J. Brennan, Jr.:

    And that’s 342, you say?

    J. Gerald Williams:

    Yes, that’s — yes, 342 U.S. 415, Mullaney versus Anderson.

    Now, Your Honors, pointing back once more to what the intent of the Legislature was in passing Chapter 22, Session of Alaska, 1953, I’d like to call your attention to original House Bill Number 3 and Senate Bill Number 5.

    J. Gerald Williams:

    These are found in the record, if you look on the record on pages 53 and 54, 53 and 54 has Senate Bill Number 5.

    I’ll just call your attention to that and comment that it is identical in language with House Bill Number 3 which you will find on page 55 and 56 of the record.

    Now, if you will notice the title, An Act to Repeal Chapter 10, Session Laws of Alaska, 1949, as amended, “And abrogating and repealing all accrued and unpaid taxes levied thereunder.”

    How much plainer could the language have been?

    Repealing all accrued and unpaid taxes levied thereunder.

    And you get down to Section 2 of the Act.

    “That all accrued and unpaid taxes on real property and improvements, and personal property, boats and vessels levied under the provisions of Chapter 10, Session Laws of Alaska, 1949, as amended by Chapter 88 are hereby cancelled, repealed and abrogated and declared null and void.”

    No argument about it.

    As — as Judge Healy pointed out in his dissenting opinion in the Ninth Circuit, there’s — that’s — that’s plain language.

    Hugo L. Black:

    So, it wasn’t complicated.

    J. Gerald Williams:

    No.

    It was knocked out in the House, one of the committees in the House.

    So it went over to the Senate and the Senate then said — Senate Judiciary said, “My goodness, what are we going to do about — about these municipalities, school districts, public utility districts that are levying their tax this year under Chapter 10.

    So to protect them, they put in a new Section 2, which is entirely different than this section.”

    Charles E. Whittaker:

    Well, is it — do I understand this, I’m not sure I understand.

    Now the facts in Section 1 (Inaudible)

    J. Gerald Williams:

    Yes sir.

    Charles E. Whittaker:

    (Inaudible)

    J. Gerald Williams:

    You have to — you read — you have to read — in my position, you have to read the have been or maybe in the current year.

    Have been or may — have been or maybe levied in 1953.

    Charles E. Whittaker:

    (Inaudible)

    J. Gerald Williams:

    No, it did not.

    It did not.

    That is our position, Your Honor.

    Respondents contend that it did, but we say it did not.

    We — we say that — that under — under this Section —

    Charles E. Whittaker:

    (Inaudible)

    J. Gerald Williams:

    Four years, 1949, 1950, 1951, 1952.

    Charles E. Whittaker:

    (Inaudible)

    J. Gerald Williams:

    Public utility districts, school districts.

    Charles E. Whittaker:

    (Inaudible)

    J. Gerald Williams:

    That’s right.

    That — that is our position, Your Honor.

    Earl Warren:

    And, as I understand it, as a matter of — of legislative intent to cite that the — that the original bill did provide for wiping out all accrued and unpaid taxes under this Chapter 10, but that the Senate later changed it in order to avoid that result.

    J. Gerald Williams:

    Your Honor —

    Earl Warren:

    Am I —

    J. Gerald Williams:

    — two identical bills were placed —

    Earl Warren:

    Yes.

    J. Gerald Williams:

    — in the (Inaudible).

    Over in the House side, they put in House Bill 3.

    On the Senate side, they put in Senate Bill 5.

    They’re both there in the record.

    They’re identical.

    Earl Warren:

    Yes.

    J. Gerald Williams:

    The purpose — the purpose was to forgive all taxes —

    Earl Warren:

    Yes.

    J. Gerald Williams:

    — for 1949, 1950, 1951, and 1952.

    Earl Warren:

    Yes.

    J. Gerald Williams:

    The House Bill got action first and — and when it got into committee, they knocked out Section 2 which forgave the taxes.

    Earl Warren:

    Yes.

    J. Gerald Williams:

    They sent it over to the Senate.

    The Senate was willing to accept that, but they said we must protect the cities, the school districts, and public utility districts for the year 1953 —

    Earl Warren:

    I see.

    J. Gerald Williams:

    — so they put in a new Section 2.

    Earl Warren:

    I see.

    I got it now.

    William J. Brennan, Jr.:

    Now, does that all add up to this?

    Section 1 had the effect because of the general savings clause of leaving collectibles still, the delinquent taxes, for up to year 1952.

    J. Gerald Williams:

    Right.

    William J. Brennan, Jr.:

    Is that right?

    J. Gerald Williams:

    Right.

    William J. Brennan, Jr.:

    And then Section 2 —

    J. Gerald Williams:

    Including up to — and including 1952.

    William J. Brennan, Jr.:

    Yes.

    That’s right.

    And then all Section 2 did was make leviable again for the year 1953 by the municipalities, school, and public utility districts, taxes for 1953.

    J. Gerald Williams:

    Right.

    William J. Brennan, Jr.:

    So, that you could collect for 1949 to 1952 inclusive, plus, these taxes levied for 1953 under Section 2, is that right?

    J. Gerald Williams:

    Right.

    The Territory could collect the taxes for 1949, 1950, 1951 and 1952 in the rural areas.

    The cities, school districts, and public utility districts, now can collect, not only for 1949, 1950, 1951 and 1952, but they can collect to 1953.

    They’ve got something extra.

    They get a little extra in this repealing Act that the Territory itself doesn’t get.

    William J. Brennan, Jr.:

    Well, then that all adds up to the rejection as you — by the territorial legislature of any proposal, whatever for the cancellation of taxes for the prior years 1949 and 1952 inclusive, is that it?

    J. Gerald Williams:

    That’s our position.

    William J. Brennan, Jr.:

    Complete rejection.

    J. Gerald Williams:

    That’s right.

    William J. Brennan, Jr.:

    And these bills if you refer this to, SB 5 and House Bill 3, which would have accomplished the cancellation, simply got nowhere, is that it?

    J. Gerald Williams:

    Well, the Senate Bill 5 died.

    It — it didn’t get anywhere.

    William J. Brennan, Jr.:

    Yes.

    J. Gerald Williams:

    The Senate — the House Bill 3 got through.

    It became Chapter 22, Section Laws of Alaska without Section 2, without — with a new Section 2.

    William J. Brennan, Jr.:

    Yes.

    And — and the — the proposed Section 2 would have cancelled and forgiven all those taxes for the previous years, would it not?

    J. Gerald Williams:

    Right, right.

    William J. Brennan, Jr.:

    And, instead of that, it was determined that the taxes should be collected for the previous years, plus, collection for 1953 of those which were levied under the new section.

    J. Gerald Williams:

    Right.

    William J. Brennan, Jr.:

    Is that it?

    J. Gerald Williams:

    Right.

    J. Gerald Williams:

    That is correct, Your Honor.

    Hugo L. Black:

    And if you are wrong, what is the consequence in your tax situations in Alaska?

    J. Gerald Williams:

    If I’m wrong in my position?

    Hugo L. Black:

    Yes.

    J. Gerald Williams:

    Then it simply means that those taxpayers, some 8000 who paid $400,000 under Chapter 10, their — their money stays in the Treasury because we — we’re taking that in.

    Hugo L. Black:

    So, how did you happen to take that in and not take in the rest?

    J. Gerald Williams:

    Because they paid and — and the rest didn’t pay.We’ve been trying to get them to pay for 10 years.

    Hugo L. Black:

    You mean a group — particular group didn’t pay?

    What group?

    J. Gerald Williams:

    Well —

    Hugo L. Black:

    I — I don’t — I’m just —

    J. Gerald Williams:

    It was represented — they — well, I — I shouldn’t say that.

    That there — the — now, Mr. Hess was a mining man or —

    Hugo L. Black:

    How many — how many people had paid the tax?

    J. Gerald Williams:

    Some 8000, I think.

    Hugo L. Black:

    What were they?

    J. Gerald Williams:

    Well —

    Hugo L. Black:

    Were they individuals or —

    J. Gerald Williams:

    Individuals, mostly, I think.

    There may have been some corporations that paid it, too.I — I couldn’t tell you, Your Honor.

    Hugo L. Black:

    So, how did the — the others who were not paying the tax over these years escape payments during this time?

    J. Gerald Williams:

    Well —

    Hugo L. Black:

    Was there an injunction?

    J. Gerald Williams:

    Yes, the first and right away, right away in 1949, when a mining man filed a super injunction.

    That injunction was granted, you see, and it was made — it was a temporary injunction in January that was made permanent in June, I think, of 1950.

    Well, it took us a while to get — the first time it went down the Ninth Circuit — you see, it — it went back on a procedural question.

    Hugo L. Black:

    So, that suspended the payments there.

    J. Gerald Williams:

    Yes.

    Hugo L. Black:

    And — but in the meantime, the majority of people —

    J. Gerald Williams:

    Some people paid —

    Hugo L. Black:

    Some number, who have paid.

    J. Gerald Williams:

    Some, yes, a total of $400,000.

    Hugo L. Black:

    And — then the — it was offered in the Legislature bill in just a year.

    That these people who were taxed and all taxes that had accrued during the time they had enjoined it, is that it?

    J. Gerald Williams:

    Yes, one was offered in 1951, Your Honor.

    Hugo L. Black:

    Yes.

    J. Gerald Williams:

    I think it passed the House in 1951, but that it didn’t get through the Senate.

    So the counsel for respondents tell you in their brief that — that they advised their — their clients not to pay the tax because if — if they — if — if the 1951 bill went through, they’re — they’re going to be liable for them.

    Hugo L. Black:

    Then in 1953, there was a bill introduced in the House and in the Senate.

    J. Gerald Williams:

    Yes.

    Hugo L. Black:

    It would have forgiven all those who — would release those who had not paid their taxes from payment — payment of the tax.

    J. Gerald Williams:

    Yes.

    Yes, that’s right.

    Hugo L. Black:

    What provision did it make for those who had paid their tax?

    J. Gerald Williams:

    None whatsoever, Your Honor.

    Hugo L. Black:

    That was the way the bill resulted.

    J. Gerald Williams:

    That’s right.

    Hugo L. Black:

    And then, what you say is that they declined to do this.

    J. Gerald Williams:

    Right.

    Hugo L. Black:

    And they struck out the clause which would have forgiven the tax.

    J. Gerald Williams:

    That’s right.

    Hugo L. Black:

    They repealed a law, but that left it in effect by the savings clause.

    J. Gerald Williams:

    Not — yes, our general savings clause.

    Hugo L. Black:

    And in order to not forgive even for 1953, they provided that certain ones could collect that tax.

    J. Gerald Williams:

    Yes, cities, public school districts, and —

    Hugo L. Black:

    That is your contention.

    J. Gerald Williams:

    Yes.

    Hugo L. Black:

    And you rely on the legislative history.

    You rely on is the fact that this tax — that these bills were offered and failed to pass —

    J. Gerald Williams:

    Yes.

    Hugo L. Black:

    — but were amended.

    Is there anything else that connects to the history

    J. Gerald Williams:

    Well, now, I’ll have to add this, Your Honor, that — that House Bill — that at the trial in the District Court, there was an attempt on the part of the Territory to get House Bill 3 in evidence and that it was not permitted to go in.

    Hugo L. Black:

    Why?

    J. Gerald Williams:

    Well, I — I’d like to look at —

    Hugo L. Black:

    Do you have to get it in —

    J. Gerald Williams:

    — page — page 48 of —

    Hugo L. Black:

    Do you have to get the House Bill in evidence.

    Did the Court not take judicial knowledge of it?

    Charles E. Whittaker:

    (Inaudible)

    Hugo L. Black:

    Did the Court refuse to consider that?

    J. Gerald Williams:

    Yes, the Court —

    Hugo L. Black:

    Which one, the Court of Appeals or the District Court?

    J. Gerald Williams:

    The — the District Court, Your Honor.

    I’d like to have you look at — at the record on page 48.

    Page 48 of the record, about three-fourths of the way down, just after Mr. Arnold, Mr. Cameral and the Court, but the Court said, “Well — well, it’s not necessary.”

    This — this matter before the Court upon a motion to dismiss the complaint of plaintiff in the several cases consolidated upon the ground that it fails to say the same under Federal Rules of Civil Procedure.

    In such a hearing, we cannot introduce evidence of something other than the acts of the Legislature or such matters as journal entries of which the Court could take judicial notice indicating any such intent or indicating the question of the intent.”

    What the Court is saying here is that, in this type of a hearing on a motion to dismiss, that it would take judicial notice of a bill, an act of the Legislature that have gone through the final passage, and would take judicial notice to the journal entries, but would not permit the Territory to introduce, in evidence, a certified copy of House Bill 3 as it was originally introduced in the House.

    Earl Warren:

    Then it proceeded to dismiss.

    No, no, the actual was the other way — what — it was — the action was by the respondents —

    J. Gerald Williams:

    Well —

    Earl Warren:

    — in this case.

    J. Gerald Williams:

    — Your Honor, if you will look now at page 50, see what the —

    Earl Warren:

    Yes.

    J. Gerald Williams:

    — Court did.

    Now, on page 50 of the record, the bottom of the page, “As to the remedy taken by the Territory, I feel that there would be nothing for the Court to do but to dismiss the action, but it occurs to me that if we did do that, we would be doing precisely what was done in the Hess case.

    Well, that was the — Hess was a mining man that first started an attack on Chapter 4 — or Chapter 10 of 1949.

    We will merely defer the more important question of whether or not the tax may in — maybe, in fact, collected by property remedy — by proper remedy.

    And in any attempt to dodge that issue, it is going to come back to the Court to be decided in the future the same as it was in the Hess case.

    J. Gerald Williams:

    Therefore, I think it is incumbent upon the Court to not dispose of this case entirely upon this issue of remedy but also to look to the merits of the thing and try and determine and so forth.”

    Now — now the case — now the judge — the Court has decided in going into the merits.And if you look on page 52 of the record, Mr. Cameral speaking, Mr. Cameral, Assistant Attorney General, Your Honor, in my office.

    “If the Court please, do I understand that on the motion to dismiss, the Court is going to decide this matter on the merits and you would like –”, the Court interrupts and says, “Yes, rather than on the question of procedure, I feel that the question of procedure that there is — that on the question of procedure, that there is no doubt that the thing is not properly before the Court, but we will try and determine it instead on the matter of the merits.”

    Hugo L. Black:

    What does that mean?

    What did he mean by that?

    J. Gerald Williams:

    Well, now —

    Hugo L. Black:

    Based on the procedures?

    J. Gerald Williams:

    On —

    Hugo L. Black:

    They said there’s no doubt.

    What question of procedure (Inaudible)

    J. Gerald Williams:

    That — that we were seeking — that — that we were seeking a personal action against the taxpayers instead of attempting to foreclose on the interest.

    Hugo L. Black:

    And so he passed that over and went to the merits with that.

    J. Gerald Williams:

    And went to the merits.

    That’s right.

    Hugo L. Black:

    Legislation of the Act?

    J. Gerald Williams:

    Yes.

    Hugo L. Black:

    It was —

    J. Gerald Williams:

    He said — he said, I could — I could throw the Territory out of court because you — you sought the wrong remedy, but you’re just — we’re just getting into a procedural hassle like we did in the Hess case.

    I would like the Ninth Circuit send it back and so — so I’m going to decide it on the merit.

    Hugo L. Black:

    How did House Bill Number 3 get in here if it was not — if it didn’t take judicial notice or it wasn’t introduced?

    It is on page 55.

    It’s in your record.

    J. Gerald Williams:

    I think it was filed with the brief, as I recall.

    A certified copy was filed with the Territory’s brief, as I recall.

    Charles E. Whittaker:

    (Inaudible)

    J. Gerald Williams:

    Yes, I — I believe he did, Your Honor.

    Earl Warren:

    There had been no challenge to — to its being proper in the — in the record, is there — has there or has there?

    The propriety that being in there has not been challenged, has it?

    J. Gerald Williams:

    Well, I can’t recall offhand whether —

    Earl Warren:

    All right.(Voice Overlap) —

    J. Gerald Williams:

    — it has or not but I — I think the Court could still take judicial notice of — of the original House Bill.

    William O. Douglas:

    Did you bring this question of —

    J. Gerald Williams:

    All judicial notice is — is to — not what should be approved.

    I mean, it’s right there.

    The — the — I think we had a certified copy from the Secretary.

    Hugo L. Black:

    I don’t suppose anybody challenges that.

    I don’t suppose the opposition challenges that out of the brief —

    J. Gerald Williams:

    I’m not —

    Hugo L. Black:

    — and it’s here and can be — take judicial knowledge of this —

    J. Gerald Williams:

    Yes.

    Hugo L. Black:

    — bill as —

    J. Gerald Williams:

    We — we cited on the Court that it was prejudicial error to keep it out, Your Honor.

    Charles E. Whittaker:

    Was that going to be good if you noticed it anyway.

    J. Gerald Williams:

    That’s right.

    You’re right.

    Earl Warren:

    I’m wondering why it isn’t in the journal.

    Is — isn’t that something normal, it would be in the journal.

    J. Gerald Williams:

    Well, you know how — Your Honor, you can have the place of meeting up there.

    You know how well, we’re a big Territory and — and we do things in a cheap, easy way and our journals, you — you get nothing out of our journals, so —

    Hugo L. Black:

    Now, I understand you to say you are a big territory?[Laughs]

    J. Gerald Williams:

    Yes.

    Yes, Justice Black.

    Hugo L. Black:

    I thought you were a State?

    Charles E. Whittaker:

    [Laughter]

    J. Gerald Williams:

    Well, I’ll tell you.

    I — I — it’s over — I’m so sorry that Justice Frankfurter wasn’t here because he asked me six years ago, if we didn’t want to be a State.

    And I told him very definitely that we did and we’re going to be a State.

    And we’re going to be a State as soon as President Eisenhower issues that proclamation, which we anticipate sometime early next month.

    We — and we’re not going to get any Christmas presents.

    It’s not going to be for Christmas, I’m sure of it.

    J. Gerald Williams:

    The mechanics of the thing — will give it to us about (Inaudible) Christmas, I think, maybe January 7th.

    We will get a late Christmas present, very happy about it.

    We’re just really elated about that.

    William J. Brennan, Jr.:

    Well, Mr. Attorney General, on — on the matter of this bill, I — I — you raised the question presented — your third question presented whether the District Court was correct in excluding House Bill 3 and Senate Bill 5.

    And I gather from page 34 of your — the respondent’s brief, your adversary’s brief, that he still insists this is an issue in the case that we’ve got to decide, is that right?

    Suggest the case it’s not open for reception of evidence.

    J. Gerald Williams:

    We’ll get —

    William J. Brennan, Jr.:

    While trying to get at it, do you — we have the question before us the decision or not?

    Page two of your —

    J. Gerald Williams:

    Yes.

    William J. Brennan, Jr.:

    — brief.

    J. Gerald Williams:

    Now — now on page 34 of respondent’s brief they say that the case was not — this case is not open here from the reception of evidence.

    In fact, it never was in the trial court either, but we think it was in the trial court, Your Honor —

    William J. Brennan, Jr.:

    Well, what I’m trying to get to is I thought I understood you to say that the third question presented by you was not before us because there was no position — in opposition to yours taken by the respondent that there is.

    J. Gerald Williams:

    Well, on reflection and — I said I didn’t.

    I think I asked but I didn’t — wasn’t too sure but on reflection now, I remember, it definitely is.

    William J. Brennan, Jr.:

    Yes.

    J. Gerald Williams:

    Yes.

    It definitely is.

    On the flip side —

    William J. Brennan, Jr.:

    Well, (Voice Overlap) — the question and I asked you are they invalid, to make it clear, or you didn’t understand them?

    Are they claiming if we can’t take judicial notice, then what happened in the Legislature?

    J. Gerald Williams:

    Well, I don’t think they claim that.

    I think they claim — I think they’re going along with the trial.

    Hugo L. Black:

    Suppose he did commit an error, what’s the injury?

    I — I had not supposed that anybody would claim that the Court couldn’t take judicial knowledge of bills offered in the Legislature.

    J. Gerald Williams:

    Well, I think that was the trial judge’s theory, Your Honor.

    Only — I think he — I think he felt that you’d only take judicial notice of a bill it passed.

    Earl Warren:

    And he said those that are in the journal could be, and this is not in the journal —

    J. Gerald Williams:

    It’s not in the journal.

    Earl Warren:

    — (Voice Overlap) to refer —

    J. Gerald Williams:

    That’s — that’s right.

    Earl Warren:

    (Inaudible)

    J. Gerald Williams:

    Yes, it — the journal, we wish — we’d quote you some of the journal entries, Your — Your Honor.

    The history of the bill and the journal and it says, for instance, “Attorney General appeared and testified but it doesn’t say what the Attorney General said when he was there.”

    I think it said Mr. Faulkner appeared and testified but it doesn’t say what Mr. Faulkner said.

    It’s — it’s not like the congressional record, in other words.

    You — you have no — no — no committee reports to go to, like in this case I cited you Mullaney versus Anderson.

    I — I — really — that we lost that case here because in the — of some testimony in a — in a congressional committee hearing which showed that the — the Constitution did apply to Alaska.

    It was on a Puerto Rican hearing and I think the Senator Butler said, “Well, it would apply to the same — the constitution applies with Alaska.”

    You’ll find the footnote in this case that’s cited to you.

    Hugo L. Black:

    Well, the brief of your adversary does go on the basis that you got all the evidence in subjecting to cross-examination.

    J. Gerald Williams:

    Well, of course, I don’t like — I don’t like — I don’t know how you cross-examine the — the bill, I mean it’s —

    Hugo L. Black:

    As to the proof of effect, it was a bill.

    J. Gerald Williams:

    You mean as a proof of fact as to whether or not it had been —

    (Inaudible)

    J. Gerald Williams:

    — had been introduced.

    I — I don’t think —

    Hugo L. Black:

    Do you believe the courts have — had to do with the bill, the bills it offered in the Legislature?

    Do require proof of fact if they offered, the language (Inaudible)

    J. Gerald Williams:

    Well, apparently in this case, it was — it was going to be necessary, Your Honor.

    Hugo L. Black:

    Well, what’s — what’s the practice about that?

    I — maybe as an (Voice Overlap) —

    J. Gerald Williams:

    Well, to me it’s — it’s a case of first instance.

    I don’t know what — I don’t know of another case where the — had been the similar procedure had been offered.

    Potter Stewart:

    Mr. Attorney General, we are coming to the basic merits again.

    You told us as I understood you, first of all, you advanced your construction of this statute.

    J. Gerald Williams:

    Yes.

    Potter Stewart:

    And then you told us that if we’re — if they were not so construed, this Court would be compelled to hold that the property tax never had been repealed at all.

    J. Gerald Williams:

    Right.

    Potter Stewart:

    And I don’t know that you’ve told us why we would be compelled to hold that?

    J. Gerald Williams:

    Well, because then such a statute would be unconstitutional as being in violation of the Fourteenth Amendment of the Federal Constitution and Section 9 of the Organic Act or the Territorial Constitution.

    Potter Stewart:

    It’s your position therefore that the original bill (Inaudible) would’ve been unconstitutional?

    J. Gerald Williams:

    Not that original bill.

    Not Chapter 10, Session Laws of 1949 but — but —

    Potter Stewart:

    (Inaudible) what appears on page 52 of the merits (Inaudible) — this original legislation that — that the Court excluded about which we’ve — which we just been discussing.

    J. Gerald Williams:

    Oh, oh —

    Earl Warren:

    Bill Number 3.

    J. Gerald Williams:

    Yes, Your Honor.

    Yes.

    Potter Stewart:

    It’s your point that that would have been unconstitutional had it passed?

    J. Gerald Williams:

    Oh, yes, definitely.

    Yes.

    Definitely, because it made no provision for the some 8000 taxpayers —

    Potter Stewart:

    Yes.

    J. Gerald Williams:

    — who would pay the total —

    Potter Stewart:

    Yes.

    J. Gerald Williams:

    — $400,000.

    That’s right.

    Yes.

    Hugo L. Black:

    Is that an equal protection argument that you’re making?

    J. Gerald Williams:

    Equal protection —

    Hugo L. Black:

    Is that —

    J. Gerald Williams:

    — under the Fourteenth Amendment, uniformity of taxes under the Section 9 of the Organic Act.

    Hugo L. Black:

    Does it provides a uniformity enacted?

    J. Gerald Williams:

    Yes.

    I’d like to call —

    Hugo L. Black:

    Where is that?

    J. Gerald Williams:

    I’d like to read that to you.

    Hugo L. Black:

    Where is that?

    J. Gerald Williams:

    If you look on our brief, petitioner’s brief page 4, 48 United States Code Section 78 and it is Section 48-1-1, Alaska Compiled Laws Annotated, 1949 requirements of uniform taxes.

    If — if you will find that, Your Honor, in — in the brief for petitioner, if you find it — it’s the green book, Your Honor.

    Hugo L. Black:

    Page what?

    J. Gerald Williams:

    The green book.

    Hugo L. Black:

    Well, I have it in this writ, petition for writ of certiorari.

    J. Gerald Williams:

    Oh, fine.

    Fine.

    Well, it’ll be —

    Hugo L. Black:

    (Voice Overlap) —

    J. Gerald Williams:

    It will be the same.

    I’ll — I’ll read it.

    Assessment — assessment.

    All taxes shall be uniform —

    Hugo L. Black:

    What page are you reading from?

    J. Gerald Williams:

    I’m reading from page 4 now of the —

    (Inaudible)

    J. Gerald Williams:

    Mr. Justice Black told me you’ll find the same thing in the petition for certiorari.

    “All taxes shall be uniform upon the same class of subjects and shall be levied and collected under general laws.”

    Now, in other words, the Legislature can — can classify and make taxes apply to different classes, but we say that they can’t classify as — you can’t classify taxpayers as into current taxpayers and delinquent taxpayer.

    That — that’s just — it just — it doesn’t.

    It violates all our senses of what’s right and wrong and — and equity.It — it just is —

    (Inaudible)

    J. Gerald Williams:

    That’s right.

    Charles E. Whittaker:

    (Inaudible) — the denial of equal protection for a State to forgive some (Inaudible)

    J. Gerald Williams:

    That’s right.

    Charles E. Whittaker:

    (Inaudible)

    Potter Stewart:

    Well, that — your point is it’s — it is if unless there’s a reasonable classification.

    J. Gerald Williams:

    Yes.

    Yes, of the same class.

    Charles E. Whittaker:

    Oh, well that’s (Inaudible)

    J. Gerald Williams:

    But these — these taxpayers, all of the same class.

    I think you can’t classify them as delinquent and the current taxpayers, the same people.

    Hugo L. Black:

    I judge from what you say that this classification would be on the basis of those who had paid and those — in favor of those who had filed a lawsuit.

    J. Gerald Williams:

    Well —

    Hugo L. Black:

    Why couldn’t they do that?

    J. Gerald Williams:

    No, because all — we had all of the delinquent taxpayers had to file lawsuits or — yes.

    And — and I don’t think that — I don’t think that would be a reasonable classification either, Your Honor.

    Now, has — has this Court (Inaudible)

    J. Gerald Williams:

    No.

    I mean, it’s a — if — it is — it is so shocking to — I think to — to our legal system that I just don’t think there’s ever been any case of that type.

    Hugo L. Black:

    Do we have to reach that question?

    J. Gerald Williams:

    No.

    If — if you interpret Chapter 22, Session Laws of Alaska, 1953, the same as Judge Healy does in his dissenting opinion then you don’t have to reach that point.

    Hugo L. Black:

    So you agree with the interpretation of the other courts (Inaudible)

    J. Gerald Williams:

    I think so.

    That — that’s my feeling.

    Hugo L. Black:

    (Inaudible)

    J. Gerald Williams:

    Pardon?

    Hugo L. Black:

    If we agree with the majority, then we’d have to reach it.

    J. Gerald Williams:

    That’s my — that’s my feeling, Your Honor.

    Hugo L. Black:

    That it’s raised from the beginning.

    J. Gerald Williams:

    Pardon?

    Hugo L. Black:

    Has it been raised from the beginning?

    J. Gerald Williams:

    The constitutional question was not raised until we petitioned for rehearing, Your Honor.

    The first time that you will — that you will find the constitutional question raised was on our petition for a rehearing.

    You’ll notice on page 2 — I think you have copies of the petition for rehearing on page 2.

    Hugo L. Black:

    Petitioner (Inaudible) on the Court of Appeals?

    J. Gerald Williams:

    Yes.

    Hugo L. Black:

    I don’t see it.

    Earl Warren:

    We don’t have it.

    J. Gerald Williams:

    Oh, you don’t have it.

    I guess it was sent to the clerk’s office but not furnished —

    Earl Warren:

    Yes.

    J. Gerald Williams:

    — with what materials you have —

    Earl Warren:

    But it —

    J. Gerald Williams:

    — but — but it was.

    Earl Warren:

    It was raised.

    J. Gerald Williams:

    Yes, it was raised.

    Earl Warren:

    And — and did — did the Court pass on it all, comment on it?

    J. Gerald Williams:

    Well, they just denied our petition for rehearing.

    Earl Warren:

    Oh, yes.

    (Inaudible)

    J. Gerald Williams:

    I don’t think there was any comment or whatnot.

    No, no comment on it.

    Charles E. Whittaker:

    May I ask this, Attorney General, what (Inaudible)

    J. Gerald Williams:

    Oh, you mean — you mean because — because —

    (Inaudible)

    J. Gerald Williams:

    They’re in no position, too, Your Honor.

    They can’t sue.

    They have — they can’t have their day in court.

    (Inaudible)

    J. Gerald Williams:

    Nine —

    Hugo L. Black:

    (Inaudible)

    J. Gerald Williams:

    Duties of the Attorney General 9-1, I’ll give it before you here just in a moment, I think.

    I think it’s broad enough to —

    Mr. Attorney General —

    J. Gerald Williams:

    — to require — recalling just from memory it — it says that — until my assistant finds it — that if there’s reasonable doubt to believe that a statute is unconstitutional, and if the — if the welfare of a substantial part of the — yes, it’s Section 9-1-5.

    Where is it?

    J. Gerald Williams:

    You will find it in the reply — reply brief of petitioners.

    And —

    Is it set forth in (Inaudible)

    J. Gerald Williams:

    You will find it in the appendix, Your Honor, Appendix A of the reply brief.

    Are these Territory laws?

    J. Gerald Williams:

    Yes.

    This is the — this is the duties of the Attorney General.

    You’ll find it —

    (Inaudible)

    J. Gerald Williams:

    No, no.

    Potter Stewart:

    Of course Mr. Attorney General, we don’t need to reach the constitutional question assuming the Territory of Alaska is in a position to raise it.

    If you’re correct about the effect of the organic statute, assuming that —

    J. Gerald Williams:

    That’s right.

    Potter Stewart:

    — the Territory is in a position —

    J. Gerald Williams:

    That is — that is —

    Potter Stewart:

    — to raise that.

    Now would that — would — has that been issue in the case from the beginning, the effect of the organic law?

    J. Gerald Williams:

    No.

    No, the interpretation — the interpretation of the statute is the only thing that’s been in from the start.

    Potter Stewart:

    Did you — where — at what stage before you came to this Court —

    J. Gerald Williams:

    On our petition for rehearing.

    Potter Stewart:

    — did you raise that?

    J. Gerald Williams:

    (Voice Overlap) —

    Potter Stewart:

    On the constitutional and the organic.

    J. Gerald Williams:

    Well, when you see the organic, I give the constitutional question.

    The Federal Constitution and the State — and the state constitution, using state in the Territory and interchange the term.

    Potter Stewart:

    Yes, I understand that.

    The organic — the organic — the Organic Act is the equivalent of a state constitution.

    J. Gerald Williams:

    Right, right.

    That’s right.

    In fact, by Congress —

    Potter Stewart:

    Right.

    J. Gerald Williams:

    Congress gave us our Constitution, that’s it.

    I’m sorry Justice Brennan.

    I looked on page — Appendix B —

    Three.

    J. Gerald Williams:

    — 3, yes.

    I’m sorry.

    I — I forgot to do that.

    (Inaudible)

    William J. Brennan, Jr.:

    I gather, (Inaudible)

    J. Gerald Williams:

    You mean — you mean — you mean, not the U.S. Attorney General, the Territory Attorney.

    William J. Brennan, Jr.:

    The Territory Attorney?

    J. Gerald Williams:

    Yes, the Territory Attorney.

    William J. Brennan, Jr.:

    (Inaudible)

    The Attorney General makes (Inaudible)

    J. Gerald Williams:

    Yes.

    (Inaudible)

    J. Gerald Williams:

    Pardon, sir?

    (Inaudible)

    J. Gerald Williams:

    Yes.

    For — for the collection of taxes.

    In the brief time I have left Your Honors, I — I think that’s about all I can touch on is the — is to mention the rules of construction that would have to apply following our reasoning.

    And the first one that we call to your attention is when an Act is susceptible of more than one construction, one of which is doubtful or of doubtful validity, the Court should adopt the valid interpretation.

    Of course, that puts us right back into how you’re going to construe Chapter 22.

    Second, an unjust result is to be avoided in statutory construction and we think it’s an unjust.

    I feel sure that on the reflection of this Court to consider that an unjust.

    I see my time is up.

    Thank you, sir.

    Earl Warren:

    Very well, Attorney General.

    Mr. Arnold, you may proceed.

    W. C. Arnold:

    Mr. Chief Justice, Your Honors.

    W. C. Arnold:

    As the Attorney General pointed out this property tax in Alaska has had a checkered career.

    Its validity was challenged and before any taxes levied under the Act became due and payable.

    And that — the — the question of its validity was in litigation throughout the entire course of the Act’s history and was not finally determined until about a year after the Legislature repealled it.

    Throughout the several sessions of the Legislatures were held after the Act was enacted, various efforts were made to repeal it or to modify it and many bills were introduced for that purpose.

    And in one bill, amended form, House Bill Number 3 eventually became a law on March 12th, 1953.

    Now, the question, the constitutional feature of this matter which — adverted to by the Attorney General in the closing part of his argument, and I — I should like to present my views upon that aspect of it.

    As Attorney General says, the constitutional matter was not suggested in the courts below either on the argument or in the written briefs until the petition for rehearing was filed in the Circuit Court.

    And it is my view or our view that it was injected at that time in order to lay a foundation for the petition for certiorari which was later filed.

    The trial court decided the case upon the same legal theories, the same authorities, and substantially the same reason as was followed in the appellate court.

    And the Territory saw no constitutional problem there, nor any — nor did they suggest any violation over the last — this Organic Act.

    Here, after having suggested in the petition for rehearing, the Territory devotes a considerable amount of space in its brief and upon the oral argument to the constitutional question.

    Now, we don’t think the question exists nor do we think that the Territory has the power to raise it or the authority to raise it if it did exist either here or in the courts below.

    And I’m not basing that simply upon the ground that they failed to raise it below.

    I think they had no authority to raise it below and no authority to raise it here.

    William J. Brennan, Jr.:

    You mean — you — the authority of standing?

    W. C. Arnold:

    Standing.

    As this Court said in Massachusetts versus Mellon and Florida versus Mellon and in other — other cases cited in our brief, no one — no one can challenge the constitutionality of an Act except upon the ground that he’s injured by its invalidity.

    And the State is no different from a private person.

    The Territory is no better than State and then I — I submit that in former decisions of this Court cited in our brief, make it clear that the Territory is not being injured by the alleged invalidity or the alleged discrimination, the alleged unreasonable classification.

    Not being of the group injured has no standing to raise the question here.

    And if —

    Hugo L. Black:

    If the — if the Act gives its room, would you say that was unconstitutional?

    W. C. Arnold:

    I do not think that the laws of the Territory, law outlining the duties of the Attorney General of Alaska changed the — the enunciated principles and decisions laid down in former cases by this Court nor do I think that they’re intended to.

    Hugo L. Black:

    Why — is — does that that statute do any more than authorize a suit by the State under the circumstances that some years ago, Tennessee was allowed to file a suit on the part of its citizens who were injured by smoke and so forth?

    W. C. Arnold:

    That — that in my opinion, Mr. Justice, that statute, that territorial statute authorizes the Attorney General to bring a suit in cases where a suit can be maintained in occasion of properties where a suit will lie, but it does not create any right or any remedy that did not exist before.

    Now, in the Tennessee case, this Court held that where the — the broad public interest was involved, such as in questions of pollution — pollution, diversion of water and that type of things which affect the health and public welfare of — of the citizens of the State, that the State can sue in their interest, but there’s no parallel here.

    Hugo L. Black:

    Why not?

    If — suppose that people have been required to pay those taxes and they would — they might have a right to sue.

    Well, if you have the thing tested out some way, it might (Inaudible)?

    W. C. Arnold:

    If the people who are injured that — this is not a matter of general public concern, the people who paid this tax and who might claim that they were injured by the application of the — this repealing law, don’t desire to raise a question.

    W. C. Arnold:

    The — the Territory or the Attorney General has no — no authority to raise it.

    Hugo L. Black:

    (Inaudible) given it by statute.

    But why — why could they not give it to him by statute?

    I’m — I don’t know whether it does it or not but I’m — I’m just trying to find out from you why they couldn’t use that.

    W. C. Arnold:

    I think the Territory might confer upon the Attorney General the right to sue or bring an action on behalf of a class.

    That, in my opinion, they have not done.

    And I — I don’t — I don’t think that territory statute reaches this — this type of situation at all.

    It’s — it’s limited.

    Hugo L. Black:

    You think the statute doesn’t cover it.

    W. C. Arnold:

    That’s correct.

    Hugo L. Black:

    The statute could get us something (Inaudible) —

    W. C. Arnold:

    I don’t think it covers at all and I don’t think that it creates any substantive rights that didn’t exist before with reference to challenging the constitutionality of an Act before this Court.

    Now, neither do we think there — the Act is unconstitutional.

    The Fourteenth Amendment does not apply to the Territory during territorial status.

    That’s been specifically held by this Court in Puerto Rico and other cases.

    And —

    Potter Stewart:

    Well now, Puerto Rico is in a different status from Alaska, isn’t it?

    W. C. Arnold:

    Well, it —

    Potter Stewart:

    I mean —

    W. C. Arnold:

    It’s different.

    At the time that the Puerto Rico case hit — arose, that Puerto Rico was a territory —

    Potter Stewart:

    Was a territory.

    W. C. Arnold:

    — as Alaska is now a territory.

    The status of Puerto Rico has changed and the status of Alaska is about to change —

    Potter Stewart:

    About to change.

    W. C. Arnold:

    But the parallel of the — the case, I think, is decisive on the point.

    Potter Stewart:

    This decision was made when Puerto Rico was a territory?

    W. C. Arnold:

    That’s correct.

    That’s my understanding.

    Hugo L. Black:

    Which decision do you talk about in Puerto Rico?

    W. C. Arnold:

    Puerto Rico versus the Secretary of Agriculture.

    I believe it’s cited in our brief.

    I — I have — now, as I say, we don’t think the Fourteenth Amendment applies under territorial status.

    But our own Circuit Court of Appeals from the Ninth Circuit has on several occasions construed the Alaska Organic Act, which contains the Section 9 of which contains the equal protection clause which was mentioned here by the Attorney General in his argument.

    They construed it in reference to this Taxing Act.

    They were — they construed it in reference to other classifications imposed by the territorial legislature in other Taxing Act.

    And on the basis of the rule on Madden versus Kentucky, it held that the Section 9 of the Alaska Organic Act requires no greater uniformity, at least no greater uniformity, than the Fourteenth Amendment would if it were applicable.

    And this held that under that rule, classifications such as this are not in violation of the Organic Act.

    Now, that was the question that it took the Court so many years to decide in this Alaska Property Tax Act.

    Whether the efforts of the territorial legislature to impose this tax on property located outside the municipalities and school districts alone, and leave to the municipalities and school districts the discretion to impose it within their limits and to retain the money for their own purposes if they didn’t decide to levy, whether that type of a classification violated the Organic Act.

    The Circuit Court who largely based upon Madden versus Kentucky said it did not.

    This Court refused certiorari.

    Similar situation applied with reference to the Alaskan net income tax.

    So that it is our view that that question is settled as far as the Ninth Circuit is concerned.

    It’s — it’s a question of statutory interpretation.

    The Organic Act is an Act of Congress.

    We treat it as a territory’s constitution but it’s an Act of Congress like any other Act and it has a settled line of Ninth Circuit decisions with reference to its classification, to the classifications that are permitted under which we believe are conclusive here.

    And we’ve cited those cases.

    The Hess versus Mullaney, that’s the litigation involving this Property Tax Act and other cases involving the Alaska Net Income Tax Act, so that we think they are conclusive.

    Now, I — I want to turn to what I think is the — the point of controversy in this case.

    And that’s the legal effect of this repealing Act, Chapter 22, the Session Laws of 1953 repealing the Alaska Property Tax Act.

    Now, if the Act with the way the Attorney General would like to have agreed, and I — I think that there might be some point to his argument.

    But the Act doesn’t say what the Attorney General seeks to make it say.

    Section 2 of the Repealing Act was saved from the effect of the repeal, any taxes which have been levied.

    Now, the Attorney General wants to say that, that means any tax which have or are levied during the current fiscal year, but it doesn’t say that.

    It said any taxes that have been levied.

    And it can only be read to mean taxes levied during into life of the Act, from 1949 until the date of repeal.

    English language won’t — won’t permit any other interpretation to — to — to be placed upon it.

    Charles E. Whittaker:

    Does he not make this argument however, (Inaudible) which have been to the current year as well as that which may be assessed through the remainder of the fiscal year.

    Is that a good distinction?

    W. C. Arnold:

    It — it is his argument but it’s — and he makes it very nicely, but it’s not a good distinction.

    It’s — it’s a strain upon the language and it — I submit that it cannot be read in that fashion.

    (Inaudible)

    W. C. Arnold:

    I’m sorry.

    (Inaudible)

    W. C. Arnold:

    That’s correct.

    Because he goes on that — the — the Section 2 goes on to say or which are levied and assessed, which are levied and assessed during the current fiscal year.

    Now —

    Earl Warren:

    May I — may I ask you, if they — Mr. Arnold, if they have the school districts, if they have different fiscal years and different tax dates.

    W. C. Arnold:

    Mr. Chief Justice, that is correct.

    They — they have different dates and they fix their own dates so that they fix them and change them from time to time.

    Earl Warren:

    I see.

    We’ll recess now.