of the Territory, and from this and
other things the conclusion is
drawn that the taxes were levied
with the intent of driving the
defendant out of business. But the
premise could not be known, it
only could be prophesied. If known
the conclusion as to legislative in
tent would not follow; and if the
intent were entertained, in the
only sense in which it rationally
could be imputed, that is, to dis
courage canning the larger amounts,
the legislature lawfully might act
with that intent. Fisheries were
not the direct 'object of attack,
but canneries. It would require
a strong case in any event to
invalidate a tax on things that
the legislature had power to re
gulate because of its collateral re
action on something else. But there
even as to fisheries the legislature
is given power to tax.
_Any tax is a discouragement
and therefore a regulation so far
as it goes, and the most plaus
ible reconciliation of this power
with the restrictions upon amend
ing- or modifying- the laws in
force is that the only purpose
of the restrictions was to prevent
the Territory from doing away
with all protection, in a short
sighted rush of fish. At least we
must take it to be clear that the
unlimited power expressly g-iven may
be exercised with consideration of
collateral advantages and disad
vantages. Alaska Fish Salting and
By-Products Go. v. Smith, 255
U.S. 44, 48. It could not be
exercised intelligently otherwise.
The extent of the power is a
question of specific interpretation
not of general principle; and there
fore we leave the many fami
liar cases that were cited, on one
side.
It is not unworthy of notice
that in * 9 of the act of August
24, 1912, an earlier statute of
July 30, 186, c. 818, * 1, 24 Stat.
170, is taken up,in which the
power of the territorial legislature
to pass (laws for the protection
of game and fish are recognized,
and also that the latest revision
of the fish law by Congress was
passed after the present tax law
had been enacted and had been
upheld by ..the ..District .Court;
that it provided that nothing there
in contained should curtail the
powers of the Territorial Legis
lature of Alaska, \and that it
showed no sign of dissatisfaction
with the way in which those pow
ers had been used. Act of June
6, 1924, c. 272, * 8; 43 Stat.
464, 467.
It is much pressed that the
tax discriminates against the large
canneries in favor of the small
ones— this especially as contra
vening the fifth Amendment and
denying due process of law. Classi
fication of taxes by the amount
of the surplus taxes has been sus
tained in various connections here
tofore. By way of specific answer
it is pointed out by the Attorney
General of Alaska that the size
of the run of salmon cannot be
foreseen; that a cannery must be
prepared to its full capacity; that
there always will be an irreducible
minimun of expense to be borne
whatever the size of the pack;
that therefore a small pack may
mean a loss and a larger one a
profit, and that on these consider
ations the law justly may attempt
to proportion the tax to the prob
able gains. The inequalities of the
tax are based upon intelligible
grounds of policy and cannot be
said to deny the petitioner its
constitutional 'frights.
Judgment Affirmed.
A True Copy
Clerk, Supreme Court, U. S.
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