Alaska Pacific Fisheries v. Alaska/Opinion of the Court
These cases were argued and submitted together, and may be disposed of in a single opinion.

In case No. 117 the action was brought in the District Court for Alaska to recover moneys alleged to be due under a statute imposing a tax upon prosecuting the business of fishing by means of fish traps in the waters of Alaska. The defendant, the Alaska Pacific Fisheries, filed an answer in which it set up that the act of the Alaska Legislature, under which the suit was brought, was void under the act of Congress creating the Legislature of Alaska, and under the Constitution of the United States, and set up other defenses not involving the Constitution.

In case No. 118 the Territory brought an action to recover taxes claimed to be due under an act of the Legislature of the Territory of Alaska for prosecuting the business of fishing for and canning salmon in Alaska. With other defenses the constitutionality of the law was contested by the defendant.

Judgment in each case was rendered in the District Court in sums in excess of $500 against the Alaska Pacific Fisheries. Upon error to the Circuit Court of Appeals for the Ninth Circuit the judgments of the District Court were affirmed. 236 Fed. 52, 149 C. C. A. 262; 236 Fed. 70, 149 C. C. A. 280.

Motions to dismiss the writs of error were filed by the Attorney General of the Territory upon the ground that the judgments of the Circuit Court of Appeals are final. Consideration of the motions was passed to the hearing upon the merits. A determination of the motions involves a construction of sections of the Judicial Code regulating appeals and writs of error in the District Court for Alaska and the Circuit Court of Appeals for the Ninth Circuit. Section 134 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1134 [Comp. St. § 1125]) provides:

'In all cases other than those in which a writ of error or      appeal will lie direct to the Supreme Court of the United      States as provided in section 247, in which the amount      involved or the value of the subject-matter in controversy      shall exceed five hundred dollars, and in all criminal cases,      writs of error and appeals shall lie from the District Court      for Alaska or from any division thereof, to the Circuit Court      of Appeals for the Ninth Circuit, and the judgments, orders,      and decrees of said court shall be final in all such cases.      But whenever such Circuit Court of Appeals may desire the instruction of the Supreme Court of      the United States upon any question or proposition of law      which shall have arisen in any such case, the court may      certify such question or proposition to the Supreme Court,      and thereupon the Supreme Court shall give its instruction      upon the question or proposition certified to it, and its      instructions shall be binding upon the Circuit Court of      Appeals.'

Section 247 (36 Stat. 1158 [Comp. St. § 1224]) of the Code provides:

'Appeals and writs of error may be taken and prosecuted from      the final judgments and decrees of the District Court for the      district of Alaska or for any division thereof direct to the      Supreme Court of the United States, in the following cases:      In prize cases; and in all cases which involve the      construction or application of the Constitution of the United      States, or in which the constitutionality of any law of the      United States or the validity or construction of any treaty      made under its authority is drawn in question, or in which      the Constitution or law of a state is claimed to be in      contravention of the Constitution of the United States. Such      writs of error and appeals shall be taken within the same      time, in the same manner, and under the same regulations as      writs of error and appeals are taken from the District Courts      to the Supreme Court.'

Section 241 (36 Stat. 1157 [Comp. St. § 1218]) of the same Code provides:

'In any case in which the judgment or decree of the Circuit      Court of Appeals is not made final by the provisions of this      title, there shall be of right an appeal or writ of error to      the Supreme Court of the United States where the matter in      controversy shall exceed one thousand dollars, besides      costs.'

It is the contention of the plaintiff in error that under section 241 the judgments of the Circuit Court of Appeals are not final and there is a right to a writ of error from this court, the matter in controversy exceeding $1,000, besides costs.

The District Court of Alaska is a court with the jurisdiction of United States District Courts and general jurisdiction in civil, criminal, equity, and admiralty causes. 4 U.S.C.omp. St. § 3564. In that court these suits were brought to recover the taxes in question. As already indicated, the answer in each of the cases raised an issue as to the constitutionality of the statute under which the taxes were levied, and the question which we are now to consider is: Are the judgments of the Circuit Court of Appeals final? In interpreting the sections of the statutes controlling this matter resort must be had to the language of the laws, to the history of the legislation, and the decisions of this court interpreting the Circuit Court of Appeals Act, now substantially carried into the Judicial Code, in so far as the same are applicable.

The sections of the Judicial Code pertaining to Alaska had their origin in prior federal legislation concerning the territory. The committee on revision of the laws in its report to Congress said of section 134:

'This section is drawn from section 202 of the Criminal Code      for Alaska (Act March 3, 1899, c. 429, 30 Stat. 1307), and      from sections 504 and 505 of the Civil Code (Act June 6,      1900, c. 786, 31 Stat. 414, 415), and states what was the      existing law on the subject. Those portions of the sections      which authorize the taking of writs of error and appeals      direct to the Supreme Court are revised in section 247.      Formerly capital cases went direct to the Supreme Court.      Section 247 was so modified as to take from the Supreme Court      its jurisdiction of capital cases, the effect being to vest      the right to review on a writ of error in the Circuit Court      of Appeals. This is accomplished, so far as this section is      concerned, by the omission of the words 'other than capital'      after the words 'and in all criminal cases." Note by      Committee on Revision, 5 Fed. Stat. Ann. p. 644, note to      section 134.

Sections 504 and 505 of the Alaska Civil Code, as they stood before the enactment of the Judicial Code, are found in 31 Statutes at Large, pp. 414, 415. These sections are as follows:

'Sec. 504. Appeals and writs of error may be taken and      prosecuted from the final judgments of the District Court for      the district of Alaska or any division thereof direct to the      Supreme Court of the United States in the following cases,      namely: In prize causes and in all cases which involve the      construction or application of the Constitution of the United      States, or in which the constitutionality of any law of the      United States, or the validity or construction of any treaty      made under its authority is drawn in question, or in which      the Constitution or law of a state is claimed to be in      contravention of the Constitution of the United States; and      that in all other cases where the amount involved or the      value of the subject-matter exceeds five hundred dollars the      United States Circuit Court of Appeals for the Ninth Circuit      shall have jurisdiction to review by writ of error or appeal      the final judgments, orders, of the District Court.

'Sec. 505. The judgments of the Circuit Court of Appeals      shall be final in all cases coming to it from the District      Court, but whenever the judges of the Circuit Court of      Appeals may desire the instruction of the Supreme Court of      the United States upon any question or proposition of law      which shall have arisen in any case pending before the      Circuit Court of Appeals on writ of error to or appeal from      the District Court, judges may certify such question or      proposition to the Supreme Court, and thereupon the Supreme      Court shall give its instruction upon the questions and      propositions certified to it, and its instruction shall be      binding upon the Circuit Court of Appeals.'

A reading of these sections shows that two classes of cases were provided for: (1) Prize cases, and cases involving the Constitution and treaties; (2) other cases wherein the amount involved exceeds $500. In the first class of cases appeal or writ of error was to this court direct. In the second class of cases the writ of error or appeal was to the United States Circuit Court of Appeals for the Ninth Circuit. Under section 505 the judgments of the Circuit Court of Appeals were made final in all cases coming to it from the District Court, with the provision that the Circult Court of Appeals might certify propositions of law to this court in any cases pending before it upon writs of error or appeals. The like provision as to the finality in the Circuit Court of Appeals was, we think, carried into the Judicial Code in section 134 thereof, and a writ of error or appeal to this court was allowed where the federal Constitution was involved, under the provisions of section 247. In section 134, as in the Alaska Code from which we have quoted, the judgment of the Circuit Court of Appeals was made final 'in all such cases'; that is, in cases in which the section permitted appeals or writs of error to the Circuit Court of Appeals.

It is true that section 134 begins by reference to cases other than those which may come to this court, and might be construed to allow appeals to the Circuit Court of Appeals for the Ninth Circuit only in cases which could not be brought directly to this court. But, bearing in mind the sources of the legislation which was enacted into the Judicial Code and the interpretation which this court has placed upon the Circuit Court of Appeals Act of 1891, we are led to the conclusion that it was not the intention of Congress to give practically two appeals in the class of cases which we are now considering. Under section 5 of the Circuit Court of Appeals Act of 1891 (26 Stat. 826, c. 517), direct appeals might be taken from the District Courts of Circuit Courts to this court in cases which involved the construction or application of the Constitution of the United States, and where such was the only matter involved an appeal could not be taken to the Circuit Court of Appeals. Carolina Glass Co. v. South Carolina, 240 U.S. 305, 318, 36 Sup. Ct. 293, 60 L. Ed. 658. But in cases wherein issues involved affecting the construction and application of the Constitution, as well as others upon which the case might go to the Circuit Court of Appeals under the Circuit Court of Appeals Act, two appeals were not allowed, and the judgment of the Circuit Court of Appeals was final if the case was taken there, and the jurisdiction originally invoked rested solely upon grounds which by section 6 of the Circuit Court of Appeals Act (section 128, Judicial Code [Comp. St. § 1120]) made its judgment final. Macfadden v. United States, 213 U.S. 288, 29 Sup. Ct. 490, 53 L. Ed. 801; Robinson v. Caldwell, 165 U.S. 359, 17 Sup. Ct. 343, 41 L. Ed. 745; Loeb v. Columbia Township Trustees, 179 U.S. 472, 21 Sup. Ct. 174, 45 L. Ed. 280; American Sugar Co. v. New Orleans, 181 U.S. 277, 21 Sup. Ct. 646, 45 L. Ed. 859; Boise Water Co. v. Boise City (No. 2), 230 U.S. 98, 33 Sup. Ct. 1003, 57 L. Ed. 1409.

Under the original Alaska Act, cases involving the application of the Constitution were directly reviewable in this court, and those reviewable by the Circuit, Court of Appeals for the Ninth Circuit, were by the terms of the act made final in that court. The Judicial Code, which is primarily a codification of former statutes, carried the provisions of these sections into that Code with the change which made all criminal cases, capital as well as others, final in the Circuit Court of Appeals. Itow v. United States, 233 U.S. 581, 34 Sup. Ct. 699, 58 L. Ed. 1102.

We think Congress, in enacting the Judicial Code, contemplated no change as to the finality of the judgments of the Circuit Court of Appeals for the Ninth Circuit in cases taken to that court from the District Court of Alaska.

The plaintiff in error might have taken a writ of error from this court to the District Court. Section 247. It did not choose to do so, and as the cases involved issues other than those relating to the Constitution, sued out a writ of error from the Circuit Court of Appeals. By the terms of section 134 the judgment of that court is made final.

The contention that the effect of this construction is to make the Circuit Court of Appeals a court of final jurisdiction in cases involving questions of the construction and application of the Constitution, is met by the suggestion that this court has ample power under the Judicial Code to review judgments of the Circuit Court of Appeals, made final in that court, by writs of certiorari. Section 240 (Comp. St. § 1217).

Reaching the conclusion that the judgments of the Circuit Court of Appeals were final in these cases, it follows that the writs of error must be

Dismissed. 

Notes