#### THE PACIFIC COAST STEAMSHIP COMPANY v. THE UNITED STATES.

(No. 26556.

Decided February 25, 1907.)

*On the Proofs.*

A steamship owned, enrolled, and registered at Seattle and taxed there is required to pay a license fee as a local tax for plying in Alaskan waters.

I.The constitutionality of the *Act 3d March, 1899*( 30 Stat. L., p. 1253), being an act to define and punish crimes in the district of Alaska, was necessarily before the Supreme Court in *Binns*v. *United States*(194 U. S. R., 48G), and is not an open question, though the ground of unconstitutionality does not appear to have been raised in that case.

II.Whether Congress can require ocean and coastwise vessels registered and licensed in-their home ports to pay a license tax for the privilege of incidentally touching at Alaskan ports and doing local business in Alaskan waters is a question of legislative power which this court can not now consider.

III.The *Act 6th June, 1900*(31 Stat. R., pp. 321, 331), expressly provides that a license fee shall be paid by “ *coastwise vessels doing local business for hire plying in Alaskan waters.”*This extends to a vessel duly enrolled and registered in its home port, Seattle, where it was taxed, if she plied in Alaskan waters and incidentally touched at Alaskan ports.

*229
      *The Reporters’*statement of the case:

The following are the facts of the case as found by the court:

I. On July 6, 1899, the claimant herein was a corporation duly organized under the laws of the State of Washington; and on said date was the owner of the steamship Queen, which vessel was, on that date, and long prior thereto, duly enrolled and registered at its home port at Seattle (Port Townsend), Wash., where it was taxed. The said vessel was at that time operated by the claimant company in the coast-wise trade, incidentally touching at Alaskan, ports.

II. On July 6, 1900, the claimant company tendered and paid to the United States District Court of Alaska, for the year beginning July 6, 1899, $1,612.15, the amount of the license fee, without other demand therefor than that exacted by the terms of section 460 of the act of March 3, 1899 (80 Stat. L., 1253), known as the act to define and punish crimes in the district of Alaska and to provide a code of criminal procedure for said district, and asked a decision'of the court as to its liability for the payment of such license tax, and at the same time protested that said vessel and its business did not come within the terms of said act, and that said act was unconstitutional and void. Thereafter said District Court decided that the claimant company was liable for said tax, from which decision an appeal was taken to the Supreme Court of the United States (187 U. S., 454), where it was held that the proceeding in the court below did not constitute a suit or action in which a final decree was rendered, and for that reason the proceeding was dismissed.

*Messrs. Stochslager and Heard*for claimant :

1. That section 460 and' others of the act of March 3, 1899, requiring licenses and exacting a fee, the amount of which proves that it is a revenue measure, is unconstitutional for the reason that it did not originate in the House of Kepresentatives, as that instrument requires of all “ bills for raising revenue.”

That it is a revenue law was settled by the Supreme Court in *Binns*v. *The United States*(194 U. S., 468). That the *230revenue provisions did not originate in the Plouse of Representatives is proven by the records of the two Houses.

That such evidence is competent proof of the fact is shown by the reference to them in the Binns case, by the Supreme Court, for such purpose. Also, *Blake*v. *Gity Bank of New York*(90 U. S., 23 Wall., 307).

There can be no question as to the facts. This being the case, there is no escape from the conclusion that the law violates article 1, section 7, of the Constitution, and is therefore void.

2. But, even if valid, it was never intended by Congress that it should apply to vessels enrolled, registered, and licensed and taxed elsewhere; but only such as ivere owned in Alaska, plied exclusively in Alaskan waters, and were not taxed elsewhere. This view is conclusively shown by the action of that body when incorporating the license provision of the penal code, in the civil code, approved June 6, 1900, by specifically excluding from its provisions *vessels licensed or taxed elsewhere.*

It is clear to our minds that a proper construction of the act of March 3, 1899, would have excluded claimant’s vessel from its provisions; and that question the company sought to raise by its protest filed with the application, but the United States Supreme Court held that it was not such a proceeding in which a final judgment could be rendered from which an appeal could be taken, and dismissed the case.

The injustice of this system of double taxation, under erroneous construction by the courts of Alaska, appealed to the Members of Congress, and by amendment such vessels were specifically excluded, as before seen. .

They should never have been included. They are licensed coastwise vessels and had a right under the license issued by •the United States to full protection. *(Gibbon*v. Ogden, 9 Wh., 310; *Herman*v. *City of*Chicago, 147 U. S., 465, and *TIuv.s*v. *New York and Porto Rico'S. S.*Go., 182 U. S., 292.)

That the courts will not sustain double taxation if an act will bear any other construction has been uniformally held. (Black on Interpretation of Statutes, p. 100; *Gloucester Ferry Go.*v. *Penn.,*114 U. S., 96, and *Pullman Oar Go.*v. *Penn.,*-141 IT. S., 32.)

*231It certainly was not intended by Congress to repeal the Revised Statutes as to coastwise vessels, but under the construction of the Alaska court such is the effect of the act of March 3, 1899.

Again, a careful examination of the act and an analysis of the language used show that it required a strained construction to bring the vessel of. the claimant within the' provisions of the act, and assess double taxation under severe penalties for failure to pay the tax. As we have seen, this is contrary to all the canons of construction. Let us examine that part of the act which is held to be applicable. It is as follows:

Freight and passenger transportation lines propelled by mechanical power on inland waters, one dollar per ton per annum on net tonnage, custom-house measurement, of each vessel.”

*“Ships and shipping.*— Ocean and coastwise vessels doing local business for hire, plying in Alaskan waters, one dollar per ton per annum on net tonnage, custom-house measurement, of each vessel.”

It is plain the words “ ocean and coastwise vessels ” are used in contradistinction to the words “ lines on inland waters.” In other words, the phrase “ ocean and coastwise vessels ” are used as descriptive of the place or owner of the business done in Alaska, and not as descriptive of the vessels or place from which they came. The words “ plying in Alaskan waters ” are significant, as indicating that only vessels whose business was confined to such waters were intended to be so taxed. If otherwise they are superfluous, as by the introductory clause to section 460, the law is applicable onfy to one prosecuting the business named within the district of Alaska. No ship not landing in Alaska would be subject to that clause. Therefore the words “ plying in Alaskan waters ” must have been intended to limit the class of vessels to which the law is applied. The introductory clause, “ prosecuting or attempting to prosecute any of the following lines of business within the district of Alaska,” and the clause in question, “ doing local business ” and “ plying in Alaskan waters,” are consistent in their apparent intention to limit the operation of the act to those vessels which are devoted to the local business and not taxed else*232where. This is the only correct construction, avoids double taxation, and is consistent with the intention of Congress, as expressed in the act of June 6, 1900, rendered necessary by the erroneous construction put upon the act of March 3, 1899, by the courts of Alaska.

*Mr. Philip M. Ashford*(with whom was *Mr. Assistant Attorney-General Van*Orsdel, for defendants.

Peelle, Ch. J.,

delivered the opinion of the court:

The claimant’s contention is that section 460 of the act of March 3, 1899 (30 Stat. L., 1253), entitled “An act to define and punish crimes in the district of Alaska and to provide a code of criminal procedure for said district,” is a revenue measure or law, and, in support of its contention, cites the case of *Binns*v. *United States*(194 U. S., 486, 491), where the court, respecting the purpose of said section; as amended by the act June 6, 1900 (31 Stat L., 321, .331), among other things, said:

“ We shall assume that the purpose of the license fees required by section 460 is the collection of revenue, and that the license fees are excises within the constitutional sense of the terms. Nevertheless we are of opinion that they are to be regarded as local taxes imposed for the purpose of raising funds to support the administration of local government in Alaska.”

It was there also held that the license tax provided by that section was not in conflict with section 8, Article I, of the Constitution providing that “ all duties, imposts, and excises shall be uniform throughout the United States.” • Being a revenue law, the claimant contends that as the bill therefor did not originate in the House of Representatives, section 7, Article I, of the Constitution was thereby violated, and that therefore the law is void.

The claimant’s further contention is that if the law is valid it was never intended to apply to vessels registered and licensed in the United States, but only to vessels owned and plying in Alaskan waters.

The defendants contend that the license fee was voluntarily paid and can not, therefore, be recovered back.

*233Respecting the constitutionality of the act, we deem it only necessary to say that while the question as to the origin of the bill (of which the court takes judicial no'tice from the public records of Congress) does not appear to have been raised in the case of *Binns*v. *United States*(supra), yet the court there held that the purpose of the license fees authorized by section 460 was the collection of revenue, and that said section was not in conflict with the uniformity ptrovisions of section 8, Article I, of the Constitution. That being-true, the court must infer that the constitutionality of the act was before the Supreme Court, and that, therefore, the question is not an open one, even though the particular ground now assigned does not appear to have been raised in that case.

However, whether Congress can require ocean and coast-wise vessels, registered and licensed in their home ports in the United States, to pay in addition thereto a license tax to the authorities of the territorial government of Alaska for the privilege of doing local business in Alaskan waters, or in the waters of other territories of the United States not contiguous thereto, is a question of legislative power, which, independent of the decision referred to, we should hesitate to deny or disregard unless there was no other way open to the court.

The claimant’s contention that the law was only intended to apply to vessels plying exclusively in Alaskan waters and not to vessels registered and taxed elsewhere can not be sustained, as the law expressly provides that a license fee shall be paid by “ coastwise vessels doing local business for hire plying .in Alaskan waters.” That such was the purpose of the act seems clear, from the act of June 6, 1900 (supra), amending said section 460 in this respect, as follows:

“ Ships and shipping: Ocean and coastwise vessels doing local business for hire plying in Alaskan waters, registered in Alaska or not paying license or tax elsewhere, one dollar per ton per annum on net tonnage, custom-house measurement, of each vessel.”

Had the words “ registered in Alaska or not paying license or tax elsewhere ” been in the original act, the claimant’s contention would, perhaps, be well taken; but the license fee in the present case Avas for business done prior to the passage of *234the amended act, and we must therefore hold that it was rightfully exacted.

The conclusion we have reached renders it unnecesary to consider whether the payment so made by the claimant under the facts-of this case was or was not a voluntary payment.The petition is dismissed.