ALASKA v. AMERICAN CAN CO.

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Argument of J. Gerald Williams

Chief Justice Earl Warren: Number 40, Territory of Alaska versus American Can Company, et al.

You may -- you may proceed, Attorney General Williams.

Mr. 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not the Territory of Alaska may continue to collect taxes from delinquent taxpayers after the taxing statute has been repealed.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that out because it will become apparent to you, later on, as I argue about Chapter 22, Session Laws of 1953, which repealed Chapter 10, Session Laws of Alaska in Section 1.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.

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.

Justice William O. Douglas: What does that -- the words during -- during the current fiscal year?

Was that -- what year was that?

Mr. J. Gerald Williams: 1953.

Justice William O. Douglas: 1953.

Mr. J. Gerald Williams: Yes, 1953, Your Honor.

Justice William O. Douglas: And they -- and the repealing -- the date of the -- of this Act repealing --

Mr. J. Gerald Williams: March the 12th, 1953 and it carried an emergency clause.

Justice William O. Douglas: March the 12th, 1953.

Mr. J. Gerald Williams: Yes.

And --

Justice William O. Douglas: When are taxes usually assessed in Alaska?

Mr. 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.

Justice 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.

Mr. 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.

Justice William O. Douglas: And I suppose your argument is that's limited, that 2 (a), that -- that -- that's the purpose of 2 (a).

Mr. 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 --

Unknown Speaker: What is that?

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

Mr. 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.

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 --

Justice William J. Brennan: (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.

Mr. 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 --

Chief Justice Earl Warren: Where are you reading it from?

Mr. J. Gerald Williams: I'm reading now on page 5, Your Honor, of the brief.

Chief Justice Earl Warren: Of your brief.

Mr. J. Gerald Williams: Yes, its page 5 of --

Chief Justice Earl Warren: Thank you.

Mr. J. Gerald Williams: -- of petitioner's brief.

Chief Justice Earl Warren: Yes, I have it.

Mr. 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.

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”?

Justice Hugo L. Black: What about it?

Mr. 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 --

Justice Hugo L. Black: (Inaudible) what's the consequence that they have been or maybe, what do you say is the consequence of that?

Mr. 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.

Justice Charles E. Whittaker: I don't understand.

(Inaudible)

Mr. 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 --

Justice William O. Douglas: If it is only to the (Inaudible)

Mr. J. Gerald Williams: If --

Justice William O. Douglas: Yes.

Mr. J. Gerald Williams: If only, yes.

It is.

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

Justice William J. Brennan: And you'd say they'd be saved by the general saving clause.

Mr. 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 --

Justice William J. Brennan: 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?

Mr. J. Gerald Williams: Yes.

Yes.

Justice William J. Brennan: And that's the interpretation of the majority?

Mr. J. Gerald Williams: Yes.

Justice William J. Brennan: Well then tell me, have we here anything more than a question of interpretation of your territorial laws?

Mr. J. Gerald Williams: Yes, you have.

You need not have, but you could have.

Justice William J. Brennan: 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?

Mr. 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.

Justice William J. Brennan: The Workmen's Compensation?

Mr. 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.

Justice William J. Brennan: Did we overturn the interpretation of the Court?

Mr. 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.

Justice William J. Brennan: Well, there is a second question, was attached to this question?

Mr. 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.

Justice William J. Brennan: Well, now that's you state, what happened?

Mr. 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 --

Justice William J. Brennan: And that's 342, you say?

Mr. 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.

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.

Justice Hugo L. Black: So, it wasn't complicated.

Mr. J. Gerald Williams: No.

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."

Justice Charles E. Whittaker: Well, is it -- do I understand this, I'm not sure I understand.

Now the facts in Section 1 (Inaudible)

Mr. J. Gerald Williams: Yes sir.

Justice Charles E. Whittaker: (Inaudible)

Mr. 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.

Justice Charles E. Whittaker: (Inaudible)

Mr. 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 --

Justice Charles E. Whittaker: (Inaudible)

Mr. J. Gerald Williams: Four years, 1949, 1950, 1951, 1952.

Justice Charles E. Whittaker: (Inaudible)

Mr. J. Gerald Williams: Public utility districts, school districts.

Justice Charles E. Whittaker: (Inaudible)

Mr. J. Gerald Williams: That's right.

That -- that is our position, Your Honor.

Chief Justice 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.

Mr. J. Gerald Williams: Your Honor --

Chief Justice Earl Warren: Am I --

Mr. J. Gerald Williams: -- two identical bills were placed --

Chief Justice Earl Warren: Yes.

Mr. 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.

Chief Justice Earl Warren: Yes.

Mr. J. Gerald Williams: The purpose -- the purpose was to forgive all taxes --

Chief Justice Earl Warren: Yes.

Mr. J. Gerald Williams: -- for 1949, 1950, 1951, and 1952.

Chief Justice Earl Warren: Yes.

Mr. 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.

Chief Justice Earl Warren: Yes.

Mr. 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 --

Chief Justice Earl Warren: I see.

Mr. J. Gerald Williams: -- so they put in a new Section 2.

Chief Justice Earl Warren: I see.

I got it now.

Justice William J. Brennan: 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.

Mr. J. Gerald Williams: Right.

Justice William J. Brennan: Is that right?

Mr. J. Gerald Williams: Right.

Justice William J. Brennan: And then Section 2 --

Mr. J. Gerald Williams: Including up to -- and including 1952.

Justice William J. Brennan: 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.

Mr. J. Gerald Williams: Right.

Justice William J. Brennan: So, that you could collect for 1949 to 1952 inclusive, plus, these taxes levied for 1953 under Section 2, is that right?

Mr. 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.

Justice William J. Brennan: 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?

Mr. J. Gerald Williams: That's our position.

Justice William J. Brennan: Complete rejection.

Mr. J. Gerald Williams: That's right.

Justice William J. Brennan: 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?

Mr. J. Gerald Williams: Well, the Senate Bill 5 died.

It -- it didn't get anywhere.

Justice William J. Brennan: Yes.

Mr. 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.

Justice William J. Brennan: Yes.

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

Mr. J. Gerald Williams: Right, right.

Justice William J. Brennan: 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.

Mr. J. Gerald Williams: Right.

Justice William J. Brennan: Is that it?

Mr. J. Gerald Williams: Right.

That is correct, Your Honor.

Justice Hugo L. Black: And if you are wrong, what is the consequence in your tax situations in Alaska?

Mr. J. Gerald Williams: If I'm wrong in my position?

Justice Hugo L. Black: Yes.

Mr. 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.

Justice Hugo L. Black: So, how did you happen to take that in and not take in the rest?

Mr. 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.

Justice Hugo L. Black: You mean a group -- particular group didn't pay?

What group?

Mr. J. Gerald Williams: Well --

Justice Hugo L. Black: I -- I don't -- I'm just --

Mr. 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 --

Justice Hugo L. Black: How many -- how many people had paid the tax?

Mr. J. Gerald Williams: Some 8000, I think.

Justice Hugo L. Black: What were they?

Mr. J. Gerald Williams: Well --

Justice Hugo L. Black: Were they individuals or --

Mr. 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.

Justice Hugo L. Black: So, how did the -- the others who were not paying the tax over these years escape payments during this time?

Mr. J. Gerald Williams: Well --

Justice Hugo L. Black: Was there an injunction?

Mr. 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.

Justice Hugo L. Black: So, that suspended the payments there.

Mr. J. Gerald Williams: Yes.

Yes.

Justice Hugo L. Black: And -- but in the meantime, the majority of people --

Mr. J. Gerald Williams: Some people paid --

Justice Hugo L. Black: Some number, who have paid.

Mr. J. Gerald Williams: Some, yes, a total of $400,000.

Justice 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?

Mr. J. Gerald Williams: Yes, one was offered in 1951, Your Honor.

Justice Hugo L. Black: Yes.

Mr. 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.

Justice Hugo L. Black: Then in 1953, there was a bill introduced in the House and in the Senate.

Mr. J. Gerald Williams: Yes.

Justice 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.

Mr. J. Gerald Williams: Yes.

Yes, that's right.

Justice Hugo L. Black: What provision did it make for those who had paid their tax?

Mr. J. Gerald Williams: None whatsoever, Your Honor.

Justice Hugo L. Black: That was the way the bill resulted.

Mr. J. Gerald Williams: That's right.

Justice Hugo L. Black: And then, what you say is that they declined to do this.

Mr. J. Gerald Williams: Right.

Justice Hugo L. Black: And they struck out the clause which would have forgiven the tax.

Mr. J. Gerald Williams: That's right.

Justice Hugo L. Black: They repealed a law, but that left it in effect by the savings clause.

Mr. J. Gerald Williams: Not -- yes, our general savings clause.

Justice Hugo L. Black: And in order to not forgive even for 1953, they provided that certain ones could collect that tax.

Mr. J. Gerald Williams: Yes, cities, public school districts, and --

Justice Hugo L. Black: That is your contention.

Mr. J. Gerald Williams: Yes.

Justice 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 --

Mr. J. Gerald Williams: Yes.

Justice Hugo L. Black: -- but were amended.

Is there anything else that connects to the history

Mr. 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.

Justice Hugo L. Black: Why?

Mr. J. Gerald Williams: Well, I -- I'd like to look at --

Justice Hugo L. Black: Do you have to get it in --

Mr. J. Gerald Williams: -- page -- page 48 of --

Justice Hugo L. Black: Do you have to get the House Bill in evidence.

Did the Court not take judicial knowledge of it?

Justice Charles E. Whittaker: (Inaudible)

Justice Hugo L. Black: Did the Court refuse to consider that?

Mr. J. Gerald Williams: Yes, the Court --

Justice Hugo L. Black: Which one, the Court of Appeals or the District Court?

Mr. 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.

Chief Justice Earl Warren: Then it proceeded to dismiss.

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

Mr. J. Gerald Williams: Well --

Chief Justice Earl Warren: -- in this case.

Mr. J. Gerald Williams: -- Your Honor, if you will look now at page 50, see what the --

Chief Justice Earl Warren: Yes.

Mr. 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.

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.”

Justice Hugo L. Black: What does that mean?

What did he mean by that?

Mr. J. Gerald Williams: Well, now --

Justice Hugo L. Black: Based on the procedures?

Mr. J. Gerald Williams: On --

Justice Hugo L. Black: They said there's no doubt.

What question of procedure (Inaudible)

Mr. 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.

Justice Hugo L. Black: And so he passed that over and went to the merits with that.

Mr. J. Gerald Williams: And went to the merits.

That's right.

Justice Hugo L. Black: Legislation of the Act?

Mr. J. Gerald Williams: Yes.

Justice Hugo L. Black: It was --

Mr. 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.

Justice 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.

Mr. 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.

Justice Charles E. Whittaker: (Inaudible)

Mr. J. Gerald Williams: Yes, I -- I believe he did, Your Honor.

Chief Justice 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?

Mr. J. Gerald Williams: Well, I can't recall offhand whether --

Chief Justice Earl Warren: All right.(Voice Overlap) --

Mr. J. Gerald Williams: -- it has or not but I -- I think the Court could still take judicial notice of -- of the original House Bill.

Justice William O. Douglas: Did you bring this question of --

Mr. 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.

Justice Hugo L. Black: I don't suppose anybody challenges that.

I don't suppose the opposition challenges that out of the brief --

Mr. J. Gerald Williams: I'm not --

Justice Hugo L. Black: -- and it's here and can be -- take judicial knowledge of this --

Mr. J. Gerald Williams: Yes.

Justice Hugo L. Black: -- bill as --

Mr. J. Gerald Williams: We -- we cited on the Court that it was prejudicial error to keep it out, Your Honor.

Justice Charles E. Whittaker: Was that going to be good if you noticed it anyway.

Mr. J. Gerald Williams: That's right.

You're right.

You're right.

Chief Justice Earl Warren: I'm wondering why it isn't in the journal.

Is -- isn't that something normal, it would be in the journal.

Mr. 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 --

Justice Hugo L. Black: Now, I understand you to say you are a big territory?[Laughs]

Mr. J. Gerald Williams: Yes.

Yes, Justice Black.

Justice Hugo L. Black: I thought you were a State?

Justice Charles E. Whittaker: [Laughter]

Mr. 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.

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.

Justice William J. Brennan: 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.

Mr. J. Gerald Williams: We'll get --

Justice William J. Brennan: While trying to get at it, do you -- we have the question before us the decision or not?

Page two of your --

Mr. J. Gerald Williams: Yes.

Justice William J. Brennan: -- brief.

Mr. 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 --

Justice William J. Brennan: 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.

Mr. 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.

Justice William J. Brennan: Yes.

Mr. J. Gerald Williams: Yes.

It definitely is.

On the flip side --

Justice William J. Brennan: 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?

Mr. J. Gerald Williams: Well, I don't think they claim that.

I think they claim -- I think they're going along with the trial.

Justice 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.

Mr. 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.

Chief Justice Earl Warren: And he said those that are in the journal could be, and this is not in the journal --

Mr. J. Gerald Williams: It's not in the journal.

Chief Justice Earl Warren: -- (Voice Overlap) to refer --

Mr. J. Gerald Williams: That's -- that's right.

Chief Justice Earl Warren: (Inaudible)

Mr. 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.

Justice 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.

Mr. 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 --

Justice Hugo L. Black: As to the proof of effect, it was a bill.

Mr. J. Gerald Williams: You mean as a proof of fact as to whether or not it had been --

Unknown Speaker: (Inaudible)

Mr. J. Gerald Williams: -- had been introduced.

I -- I don't think --

Justice 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)

Mr. J. Gerald Williams: Well, apparently in this case, it was -- it was going to be necessary, Your Honor.

Justice Hugo L. Black: Well, what's -- what's the practice about that?

I -- maybe as an (Voice Overlap) --

Mr. 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.

Justice 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.

Mr. J. Gerald Williams: Yes.

Justice 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.

Mr. J. Gerald Williams: Right.

Justice Potter Stewart: And I don't know that you've told us why we would be compelled to hold that?

Mr. 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.

Justice Potter Stewart: It's your position therefore that the original bill (Inaudible) would've been unconstitutional?

Mr. J. Gerald Williams: Not that original bill.

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

Justice 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.

Mr. J. Gerald Williams: Oh, oh --

Chief Justice Earl Warren: Bill Number 3.

Mr. J. Gerald Williams: Yes.

Yes, Your Honor.

Yes.

Yes.

Justice Potter Stewart: It's your point that that would have been unconstitutional had it passed?

Mr. J. Gerald Williams: Oh, yes, definitely.

Yes.

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

Justice Potter Stewart: Yes.

Mr. J. Gerald Williams: -- who would pay the total --

Justice Potter Stewart: Yes.

Mr. J. Gerald Williams: -- $400,000.

That's right.

That's right.

Yes.

Justice Hugo L. Black: Is that an equal protection argument that you're making?

Mr. J. Gerald Williams: Equal protection --

Justice Hugo L. Black: Is that --

Mr. J. Gerald Williams: -- under the Fourteenth Amendment, uniformity of taxes under the Section 9 of the Organic Act.

Justice Hugo L. Black: Does it provides a uniformity enacted?

Mr. J. Gerald Williams: Yes.

Yes.

I'd like to call --

Justice Hugo L. Black: Where is that?

Mr. J. Gerald Williams: I'd like to read that to you.

Justice Hugo L. Black: Where is that?

Mr. 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.

Justice Hugo L. Black: Page what?

Mr. J. Gerald Williams: The green book.

Justice Hugo L. Black: Well, I have it in this writ, petition for writ of certiorari.

Mr. J. Gerald Williams: Oh, fine.

Fine.

Well, it'll be --

Justice Hugo L. Black: (Voice Overlap) --

Mr. J. Gerald Williams: It will be the same.

I'll -- I'll read it.

Assessment -- assessment.

All taxes shall be uniform --

Justice Hugo L. Black: What page are you reading from?

Mr. J. Gerald Williams: I'm reading from page 4 now of the --

Unknown Speaker: (Inaudible)

Mr. 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 --

Unknown Speaker: (Inaudible)

Mr. J. Gerald Williams: That's right.

Justice Charles E. Whittaker: (Inaudible) -- the denial of equal protection for a State to forgive some (Inaudible)

Mr. J. Gerald Williams: That's right.

Justice Charles E. Whittaker: (Inaudible)

Justice Potter Stewart: Well, that -- your point is it's -- it is if unless there's a reasonable classification.

Mr. J. Gerald Williams: Yes.

Yes, of the same class.

Justice Charles E. Whittaker: Oh, well that's (Inaudible)

Mr. 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.

Justice 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.

Mr. J. Gerald Williams: Well --

Justice Hugo L. Black: Why couldn't they do that?

Mr. 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.

Unknown Speaker: Now, has -- has this Court (Inaudible)

Mr. J. Gerald Williams: No.

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.

Justice Hugo L. Black: Do we have to reach that question?

Mr. 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.

Justice Hugo L. Black: So you agree with the interpretation of the other courts (Inaudible)

Mr. J. Gerald Williams: I think so.

That -- that's my feeling.

Justice Hugo L. Black: (Inaudible)

Mr. J. Gerald Williams: Pardon?

Justice Hugo L. Black: If we agree with the majority, then we'd have to reach it.

Mr. J. Gerald Williams: That's my -- that's my feeling, Your Honor.

Justice Hugo L. Black: That it's raised from the beginning.

Mr. J. Gerald Williams: Pardon?

Justice Hugo L. Black: Has it been raised from the beginning?

Mr. 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.

Justice Hugo L. Black: Petitioner (Inaudible) on the Court of Appeals?

Mr. J. Gerald Williams: Yes.

Justice Hugo L. Black: I don't see it.

I don't see it.

Chief Justice Earl Warren: We don't have it.

Mr. J. Gerald Williams: Oh, you don't have it.

I guess it was sent to the clerk's office but not furnished --

Chief Justice Earl Warren: Yes.

Mr. J. Gerald Williams: -- with what materials you have --

Chief Justice Earl Warren: But it --

Mr. J. Gerald Williams: -- but -- but it was.

Chief Justice Earl Warren: It was raised.

Mr. J. Gerald Williams: Yes, it was raised.

Chief Justice Earl Warren: And -- and did -- did the Court pass on it all, comment on it?

Mr. J. Gerald Williams: Well, they just denied our petition for rehearing.

Chief Justice Earl Warren: Oh, yes.

Unknown Speaker: (Inaudible)

Mr. J. Gerald Williams: I don't think there was any comment or whatnot.

No, no comment on it.

Justice Charles E. Whittaker: May I ask this, Attorney General, what (Inaudible)

Mr. J. Gerald Williams: Oh, you mean -- you mean because -- because --

Unknown Speaker: (Inaudible)

Mr. 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.

Unknown Speaker: (Inaudible)

Mr. J. Gerald Williams: Nine --

Justice Hugo L. Black: (Inaudible)

Mr. 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 --

Justice John M. Harlan: Mr. Attorney General --

Mr. 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.

Justice John M. Harlan: Where is it?

Mr. J. Gerald Williams: You will find it in the reply -- reply brief of petitioners.

And --

Unknown Speaker: Is it set forth in (Inaudible)

Mr. J. Gerald Williams: You will find it in the appendix, Your Honor, Appendix A of the reply brief.

Unknown Speaker: Are these Territory laws?

Mr. J. Gerald Williams: Yes.

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

You'll find it --

Unknown Speaker: (Inaudible)

Mr. J. Gerald Williams: No, no.

Justice 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 --

Mr. J. Gerald Williams: That's right.

Justice Potter Stewart: -- the Territory is in a position --

Mr. J. Gerald Williams: That is -- that is --

Justice 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?

Mr. J. Gerald Williams: No.

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

Justice Potter Stewart: Did you -- where -- at what stage before you came to this Court --

Mr. J. Gerald Williams: On our petition for rehearing.

Justice Potter Stewart: -- did you raise that?

Mr. J. Gerald Williams: (Voice Overlap) --

Justice Potter Stewart: On the constitutional and the organic.

Mr. 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.

Justice Potter Stewart: Yes, I understand that.

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

Mr. J. Gerald Williams: Right, right.

That's right.

In fact, by Congress --

Justice Potter Stewart: Right.

Mr. J. Gerald Williams: Congress gave us our Constitution, that's it.

I'm sorry Justice Brennan.

I looked on page -- Appendix B --

Unknown Speaker: Three.

Mr. J. Gerald Williams: -- 3, yes.

I'm sorry.

I -- I forgot to do that.

Unknown Speaker: (Inaudible)

Justice William J. Brennan: I gather, (Inaudible)

Mr. J. Gerald Williams: You mean -- you mean -- you mean, not the U.S. Attorney General, the Territory Attorney.

Justice William J. Brennan: The Territory Attorney?

Mr. J. Gerald Williams: Yes, the Territory Attorney.

Justice William J. Brennan: (Inaudible)

The Attorney General makes (Inaudible)

Mr. J. Gerald Williams: Yes.

Unknown Speaker: (Inaudible)

Mr. J. Gerald Williams: Pardon, sir?

Unknown Speaker: (Inaudible)

Mr. 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.

Chief Justice Earl Warren: Very well, Attorney General.

Mr. Arnold, you may proceed.

Argument of W. C. Arnold

Mr. W. C. Arnold: Mr. Chief Justice, Your Honors.

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.

Justice William J. Brennan: You mean -- you -- the authority of standing?

Mr. 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 --

Justice Hugo L. Black: If the -- if the Act gives its room, would you say that was unconstitutional?

Mr. 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.

Justice 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?

Mr. 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.

Justice 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)?

Mr. 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.

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

Justice 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.

Mr. 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.

Justice Hugo L. Black: You think the statute doesn't cover it.

Mr. W. C. Arnold: That's correct.

Justice Hugo L. Black: The statute could get us something (Inaudible) --

Mr. 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 --

Justice Potter Stewart: Well now, Puerto Rico is in a different status from Alaska, isn't it?

Mr. W. C. Arnold: Well, it --

Justice Potter Stewart: I mean --

Mr. W. C. Arnold: It's different.

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

Justice Potter Stewart: Was a territory.

Mr. 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 --

Justice Potter Stewart: About to change.

Mr. W. C. Arnold: But the parallel of the -- the case, I think, is decisive on the point.

Justice Potter Stewart: This decision was made when Puerto Rico was a territory?

Mr. W. C. Arnold: That's correct.

That's my understanding.

Justice Hugo L. Black: Which decision do you talk about in Puerto Rico?

Mr. 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.

Justice 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?

Mr. 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.

Unknown Speaker: (Inaudible)

Mr. W. C. Arnold: I'm sorry.

Unknown Speaker: (Inaudible)

Mr. 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 --

Chief Justice 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.

Mr. 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.

Chief Justice Earl Warren: I see.

We'll recess now.

Print this transcript Transcript: 

Argument of W. C. Arnold

Chief Justice Earl Warren: Mr. Arnold, you may proceed.

Mr. W. C. Arnold: Thank you, Mr. Chief Justice.

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

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

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

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

This is the universal rule.

There's no authority to a contrary.

None is cited by the territory.

I do not think that they challenge the rule.

They simply seek to avoid its application.

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

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

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

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

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

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

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

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

Unknown Speaker: Mr. Arnold, what -- what was the purpose of subsection (b) (Inaudible)

Mr. W. C. Arnold: Because the exemption -- the -- in setting provisions of the Alaska Property Tax Act, it contained a provision authorizing the territorial tax commissioner and other officials of the territory to grant incentive exemptions --

Justice Hugo L. Black: To what?

Mr. W. C. Arnold: Incentive exemptions for other creation of new industries, a territory at it came out of efforts to induce the development of Alaska's pulp and other -- other resources.

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

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

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

Justice Hugo L. Black: Well, again this time (b) really had a -- in fact, only for the current fact here whatever that might be, governed by (a)?

Mr. W. C. Arnold: It -- it so reads, Mr. Justice.

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

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

Justice Hugo L. Black: But so far as (Inaudible)

Mr. W. C. Arnold: The taxes were not forgiven for prior years in -- in municipalities and school districts, in public utility districts.

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

None of them were forgiven.

Justice Charles E. Whittaker: Do you say that (Inaudible) to an attempt on repeal?

Mr. W. C. Arnold: Yes, Mr. Justice Whittaker.

That is in my opinion is the effect.

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

Justice Charles E. Whittaker: Do you divide that, as I understand (Inaudible) taxes which have been levied?

Mr. W. C. Arnold: Well, taxes which have been levied in my -- in my view apply to taxes levied in municipalities, school districts and so forth during the year 1949 or 1950, 1951 and 1952.

Justice Charles E. Whittaker: (Inaudible)

That's right, isn't it?

Mr. W. C. Arnold: That's correct.

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

And his argument here a few minutes ago.

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

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

Well it doesn't say that.

Justice Hugo L. Black: I thought -- I must have misunderstood him.

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

Mr. W. C. Arnold: Well, that's the way I read it Mr. Justice Black.

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

Justice Hugo L. Black: Well, I didn't understand him to read it as applied to former years.

Mr. W. C. Arnold: Well, I -- he --

Justice Hugo L. Black: But to taxes that had already been assessed --

Mr. W. C. Arnold: You mean --

Justice Hugo L. Black: -- in the year 1953.

Mr. W. C. Arnold: Well, I think that's his argument.

Justice Hugo L. Black: That's what I thought.

Mr. W. C. Arnold: I --I -- I just want to be sure I was correct.

Mr. W. C. Arnold: I -- I'm --

Justice Hugo L. Black: May I --

Mr. W. C. Arnold: -- desperately want and understood it is not mine because I don't agree with it.

Justice Hugo L. Black: I understand.

Justice Charles E. Whittaker: (Inaudible)

Mr. W. C. Arnold: Yes.

Justice Charles E. Whittaker: I believe Justice (Inaudible) --

Mr. W. C. Arnold: That's correct.

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

Mr. W. C. Arnold: That's correct.

Justice Charles E. Whittaker: Not only -- as I understand the Attorney General, (Inaudible) that situation and apply it.

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

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

Mr. W. C. Arnold: That's the Attorney General's argument as I understand it, and I thoroughly disagree with it.

Justice Charles E. Whittaker: (Inaudible)

Mr. W. C. Arnold: Yes.

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

It does not appear in the record.

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

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

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

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

As -- as Your Honors know, tax is --

Justice Tom C. Clark: The whole year.

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

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

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

Justice Tom C. Clark: I --

Mr. W. C. Arnold: Now --

Justice Tom C. Clark: -- understand your position.

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

Justice Tom C. Clark: They would be saying (Inaudible) --

Mr. W. C. Arnold: Not under the -- or one of the General Savings clause --

Justice Tom C. Clark: Yes.

Mr. W. C. Arnold: -- if -- if you --

Justice Tom C. Clark: If you are levying.

Mr. W. C. Arnold: -- if you -- under the Attorney General's construction of -- of the repealing Act that would be true.

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

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

Justice William O. Douglas: Do you know of anything they levied after March, I know it's not in the record, after March 15th.

(Inaudible) -- do you --

Mr. W. C. Arnold: No, no I wasn't.

Sorry.

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

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

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

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

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

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

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

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

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

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

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

But they didn't do that.

Chief Justice Earl Warren: No, they didn't but it show some significance to me when they started that way.

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

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

Mr. W. C. Arnold: There's no question but if there was a change of mind.

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

The legislature didn't want to do that.

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

Chief Justice Earl Warren: But my point -- my point is that as -- as the bill was finally enacted they don't specifically say either in the title or in the body of the Act that they abrogate or forgive any taxes.

Mr. W. C. Arnold: That's correct.

Chief Justice Earl Warren: Now the --

Mr. W. C. Arnold: The law does that.

Chief Justice Earl Warren: -- that -- that seems significant to me is they started out one way to do that and -- and that I -- I suppose was one of the things that -- that caused controversy over the bill.

Mr. W. C. Arnold: Not of course it's what caused the controversy.

This bill --

Chief Justice Earl Warren: -- and then they end up without saying that.

Mr. W. C. Arnold: This bill, like all bills in the legislature introduced in committee and was considering, it was amended several times.

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

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

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

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

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

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

They did not want to abrogate for all taxes.

They wanted to save some taxes.

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

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

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

Justice Hugo L. Black: May I ask you what would be the effect of the Act as you understand it if there had been nothing but Section 1?

Mr. W. C. Arnold: If it only been Section 1 then the -- the General Alaska Savings statute would come into full play.

Justice Hugo L. Black: And they could have collected taxes --

Mr. W. C. Arnold: All of the taxes.

Justice Hugo L. Black: -- that had been assessed prior to the repeal.

Mr. W. C. Arnold: That's correct.

Justice Hugo L. Black: Could they have levied taxes for any that had not been assessed prior to the appeal?

Mr. W. C. Arnold: No.

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

Justice Hugo L. Black: They would've been bound by that.

Mr. W. C. Arnold: That's right.

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

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

Mr. W. C. Arnold: Oh, the Regional Taxing Act, yes.

Justice Hugo L. Black: That's right.

Mr. W. C. Arnold: Yes, it provided a different system.

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

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

Mr. W. C. Arnold: March the 12th.

Justice Hugo L. Black: What?

Mr. W. C. Arnold: It became effective March the 12th.

Justice Hugo L. Black: March 12th.

Mr. W. C. Arnold: The repealing Act.

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

Mr. W. C. Arnold: That's correct.

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

Mr. W. C. Arnold: They are --

Justice Hugo L. Black: They had to do that if they want to save that, didn't they?

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

Justice Hugo L. Black: Well yes, all right.

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

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

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

Mr. W. C. Arnold: That's correct.

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

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

Mr. W. C. Arnold: Well, without Section 2 there could have been no taxes levied after March 12th.

Justice Hugo L. Black: Well, with section -- that's right, could have been non-levied.

Mr. W. C. Arnold: Correct.

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

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

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

Justice Hugo L. Black: Why would it?

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

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

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

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

Would it not?

Am I wrong?

Mr. W. C. Arnold: It would have cut off if they -- if they had not -- if they had not included it then the taxes that were already levied on March 12th, 1953

Justice Hugo L. Black: By the districts.

Mr. W. C. Arnold: By the districts, would have been saved under the general repealing Act.

Justice Hugo L. Black: But no others?

Mr. W. C. Arnold: All to territorial taxes --

Justice Hugo L. Black: I mean, in the future.

Mr. W. C. Arnold: No, no future taxes.

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

Mr. W. C. Arnold: They'd been barred from making future levies under this Act.

Justice Hugo L. Black: Although this entire Territory would not have been barred.

Mr. W. C. Arnold: The Territory had no -- no tax on -- on the Act that was repealed.

Justice Hugo L. Black: Why did it --

Mr. W. C. Arnold: (Voice Overlap) --

Justice Hugo L. Black: The Territory would not have been barred if they had repealed, merely repealed.

Mr. W. C. Arnold: They would have been -- the Territory would have been barred from making any additional levies, yes.

Justice Hugo L. Black: As to that.

Mr. W. C. Arnold: That's right.

Justice Hugo L. Black: But its levy had already been made, is it not?

In 1953?

Mr. W. C. Arnold: No, no.

It's not been made.

Justice Hugo L. Black: It had not been made.

Mr. W. C. Arnold: No, it's not.

Justice Hugo L. Black: When was it made, July?

Mr. W. C. Arnold: It would have been -- it would have been made the following December.

Justice Hugo L. Black: Following December.

Chief Justice Earl Warren: And the Territory doesn't claim any -- any tax for 1953 other than for these special districts mentioned in subdivision 2, does it?

Mr. W. C. Arnold: The taxes levied in these special districts are not the subject of this suit and the Territory doesn't claim any of those either.

This --

Chief Justice Earl Warren: Well --

Mr. W. C. Arnold: -- this suit is for taxes outside of the district.

Chief Justice Earl Warren: But I mean, their position wouldn't lead us to the conclusion that -- that under those circumstances they -- they could have levied any tax for 1953.

Mr. W. C. Arnold: No, there's nothing to indicate that the Territory --

Chief Justice Earl Warren: Yes.

Mr. W. C. Arnold: -- claims any rights --

Chief Justice Earl Warren: Yes.

Mr. W. C. Arnold: -- beyond March 1953.

Chief Justice Earl Warren: Well, then --

Justice Hugo L. Black: I asked you the question because of your argument that the general rule is of the savings clause, especially saving, that indicates that that's all it's intended to be saved.

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

Mr. W. C. Arnold: I -- my difficulty there Mr. Justice is that the other reason is derived only by changing the wording of the Act.

Justice Hugo L. Black: Well, is it -- is it that the --

Mr. W. C. Arnold: That in my view.

Justice Hugo L. Black: -- the first Act -- the first Act treated those two types of taxation differently.

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

It takes a month specially, doesn't it?

Mr. W. C. Arnold: It allowed one to remain for the current year and the other one, it didn't.

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

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

That's my view.

Justice Hugo L. Black: Yes.

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

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

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

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

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

So they made a specific reservation here.

Justice William J. Brennan: May I ask, Mr. Arnold, would you -- if this would be the same, we didn't have this difficulty with subdivision (a).

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

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

Mr. W. C. Arnold: Well, I'd be on pretty weak ground, I think.

If it read as I understand --

Justice William J. Brennan: (Inaudible)

Mr. W. C. Arnold: I -- if I understand, Your -- Your Honor to mean that the Act would read, “Any taxes which are levied and assessed during the current fiscal year by municipalities, school and public utilities --

Justice William J. Brennan: That's my (Inaudible)

Mr. W. C. Arnold: I -- I think that then the General Savings Act would apply.

Justice William J. Brennan: But -- but that there are (Inaudible) in which not to send a special savings clause, the principal word, they would not (Inaudible)

Mr. W. C. Arnold: But Mr. Justice, as you -- as you and I have amended the Act, it has purely prospective application.

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

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

Mr. W. C. Arnold: As retrospective, yes.

They -- it is.

In my view it is retrospective.

Justice William J. Brennan: (Voice Overlap) but I didn't quite get that.

Mr. W. C. Arnold: And in my view it can't be read any other way and that's the way this trial court and the Circuit Court read it.

Justice William J. Brennan: In other words, what you're arguing is now the exception (Inaudible), the savings clause, related as -- relating as it does only to previously assessed taxes by municipalities, school or public utilities.

We read that way necessarily in that -- the extent.

There is -- what savings, that's the extent of it but --

Mr. W. C. Arnold: Save those taxes and none -- none other.

Justice William J. Brennan: (Voice Overlap) --

Mr. W. C. Arnold: Now, if you read it prospectively, that's something different again because the general savings statute has no prospective feature.

Justice William J. Brennan: (Inaudible)

Mr. W. C. Arnold: Well, it's the question upon which this case was decided in the lower court and in the trial court, and the appellate court, the very question.

I -- I think there was no other.

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

I -- I don't think that they have much to do with this.

Justice Charles E. Whittaker: Mr. Arnold, I wonder if -- if you and Justice Brennan have really amended the statute as you stated a moment ago.

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

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

Would it not make it clear?

Mr. W. C. Arnold: I have to defer to Mr. Justice Brennan on that.[Laughter]

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

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

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

Another rule of construction?

Mr. W. C. Arnold: Well, Mr. Justice, if the punctuation that you speak of changes the meaning of the Act, I -- I think it -- it's quite immaterial.

Justice Charles E. Whittaker: If -- if it changed the meaning of the Act.

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

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

I'm just thinking out loud.

Mr. W. C. Arnold: Well, I -- I read it the other way myself and I -- I may be wrong, but the trial court and the appellate court agrees with me.

Justice Charles E. Whittaker: Yes.

Mr. W. C. Arnold: I -- so I -- I'm not completely alone.

I -- I don't see --

Justice Charles E. Whittaker: You may be quite right.

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

Mr. W. C. Arnold: I -- I'm not able to read it in any other fashion nor to read the background of it.

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

One bill abrogated them all.

Justice Charles E. Whittaker: Well, then how (Voice Overlap) --

Mr. W. C. Arnold: (Voice Overlap) amended in the fashion so as to save them all.

That was the First Amendment, struck out Section 2.

Then they were all saved.

That didn't suit.

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

Mr. W. C. Arnold: I don't think I make it my -- my argument, Mr. Justice Whittaker.

I think it's there.

It's there in the Act.

Justice Charles E. Whittaker: You think it is a savings clause?

Mr. W. C. Arnold: Yes.

Yes.

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

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

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

Justice Charles E. Whittaker: Well literally it says, Section 1 says, "All Chapter 10 is repealed."

Then come Section 2.

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

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

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

Mr. W. C. Arnold: Well now, Mr. Justice Whittaker, I don't quite agree with that.

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

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

Justice Charles E. Whittaker: Do you think that's what it means?

Mr. W. C. Arnold: I -- what it says because by -- by operation of the -- of the Alaska Code and -- and by the settled constructions in such cases, over constructions of such cases.

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

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

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

But the legislature didn't want it that way.

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

Justice Hugo L. Black: Can I ask you, Mr. Arnold, about one rule of construction invoked by the Attorney General?

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

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

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

Did you --

Mr. W. C. Arnold: Is that --

Justice Hugo L. Black: What do you say about that?

Mr. W. C. Arnold: This Court followed it.

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

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

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

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

I -- I --

Justice Hugo L. Black: You say that the rule he invokes doesn't apply here because the results cannot be unconscionable.

Mr. W. C. Arnold: Well, if it -- if it's unconscionable then in the thousands of cases that had been decided in this country and many by this Court, that feature has been overlooked.

Now, taxes are not a contractual obligation.

They're purely involuntary.

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

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

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

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

Now -- as of the date of the repeal.

Justice Hugo L. Black: Is that correct?

Mr. W. C. Arnold: Well, I -- I don't know but I -- I don't -- I don't think the Attorney General would say so if it weren't correct.

I don't have any -- any way of testing it but I assume that it is correct.

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

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

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

Now, then the legislature repealed the law.

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

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

Justice Hugo L. Black: They argue that on constitutional provision.

Mr. W. C. Arnold: That's correct.

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

Now, in this --

Chief Justice Earl Warren: Is there any authority that you know Mr. Arnold where to the effect that that can be done.Have you -- have you run across any cases to that effect?

Mr. W. C. Arnold: That they can do it?

Chief Justice Earl Warren: Yes.

Mr. W. C. Arnold: Yes.

We've cited with the footnotes in the briefs, a hundred or more in the briefs here --

Chief Justice Earl Warren: (Voice Overlap) the same --

Mr. W. C. Arnold: -- including some themes of this Court --

Chief Justice Earl Warren: But are the in the same posture as this case?

Mr. W. C. Arnold: Yes, many of them.

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

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

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

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

Chief Justice Earl Warren: But here we have -- here we have a statute to levying a tax that has gone through to the Highest Court, and the Highest Court has determined it is valid.

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

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

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

Mr. W. C. Arnold: Yes, Mr. Justice, and they're cited in our brief but I would call your attention.

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

A year after the legislature repealed the law.

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

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

We advised our clients not to pay them.

Others took a different position.

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

That was their right.

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

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

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

This case was never tried.

It never opened for the reception of evidence.

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

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

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

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

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

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

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

Justice William J. Brennan: Well tell me --

Mr. W. C. Arnold: -- in this argument and I don't think it makes too much difference.

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

Mr. W. C. Arnold: I agree with the Circuit Court that the Journals are -- can be judicially noticed.

They show the titles to these bills.

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

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

There isn't enough difference to -- to influence the ultimate decision of this case.

But I -- I --

Justice William J. Brennan: My question was whether you thought it would -- inappropriate for us to do precisely that in examining the questions, inspections --

Mr. W. C. Arnold: I -- I think it's inappropriate for -- for this Court to -- to receive evidence at this posture of the case.

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

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

I -- I think again about the same answer.

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

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

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

Justice William J. Brennan: I still don't get it Mr. Arnold whether you do or don't object (Inaudible)

The general emphasis and everything they contend.

Mr. W. C. Arnold: Well Mr. Justice, I -- I feel that it would be inappropriate for this Court to consider evidence not available to the trial court.

Justice William J. Brennan: I can understand that, I wasn't sure.

Justice Hugo L. Black: I understand that but I -- I'd like to know, do you think that's a question of evidence, a question of judicial knowledge.

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

Do you deny that this the proper bill (Inaudible)

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

Justice Hugo L. Black: Have you some more to which you wish to call out (Voice Overlap) --

Mr. W. C. Arnold: If this matter now --

Justice Hugo L. Black: -- judicial notice, knowledge?

Mr. W. C. Arnold: If this matter is to be tried on that issue --

Justice Hugo L. Black: I'm not talking about trying.

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

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

Mr. W. C. Arnold: Well, Mr. Justice --

Justice Hugo L. Black: -- and everything else.

Mr. W. C. Arnold: I think you take judicial knowledge of -- of the records of the Congress and of the agencies, but these are not of those records.

These are supplied by the Attorney General --

Justice Hugo L. Black: Well, that's -- that's the way get them nearly all the time, one of the litigants supplies them.

Justice William J. Brennan: Or we find them ourselves.

Justice Hugo L. Black: That's the way they come to us.

Mr. W. C. Arnold: I'm not trying to deny the rule of -- of judicial notice.

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

Justice Hugo L. Black: I can --

Mr. W. C. Arnold: -- oral argument.

Justice Hugo L. Black: -- I can agree with you on that.

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

I think it's a question of judicial knowledge.

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

I'm not talking about the evidence question.

That to me is -- I'm just speaking for myself but I think nothing to it.

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

Justice Hugo L. Black: Did you tie the constitutionality of Act?

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

Or decide -- to decide the interpretation of it.

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

Mr. W. C. Arnold: You can take judicial knowledge of -- of the recorded history of the Act, yes.

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

Judicial knowledge dispenses with evidence.

Justice Hugo L. Black: That's right.

I agree to that.

I agree to that.

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

Mr. W. C. Arnold: Well --

Justice Hugo L. Black: A bill that take place as you pass a bill to the legislative body.

Mr. W. C. Arnold: Well, I can explain how the controversy arises.

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

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

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

This is an effort on their part --

Justice Hugo L. Black: But I understand (Voice Overlap) --

Mr. W. C. Arnold: -- to send this case back --

Justice Hugo L. Black: (Voice Overlap) -- what I -- what I said was I couldn't understand why so much arguments should be made or whether or not a bill to the part of legislative record was offered.

I don't -- I don't understand it.

I -- we never -- I don't recall having seen anything like that here before.

Maybe it's --

Mr. W. C. Arnold: Well, I don't think that you properly entertained the argument on a case or an offer was -- an effort was made to introduce evidence during an oral argument.

Justice Hugo L. Black: To -- to me it's just like offering to prove that an Act of Congress as a piece of evidence when somebody gives it a -- signs of error, the fact that it -- they decline to admit it in evidence.

Mr. W. C. Arnold: Well, that's -- that is one -- you -- that is a record of the Congress that you can judicially notice.

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

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

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

Mr. W. C. Arnold: No, definitely not.

Justice William J. Brennan: What would the -- what's missing from it?

Mr. W. C. Arnold: Well, this matter was before two or three sessions of the legislature.

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

Justice William J. Brennan: You mean in other sessions?

Mr. W. C. Arnold: Yes, and in this session and other amendments offered, and committee hearings, and debates.

Justice William J. Brennan: Well, I know --

Mr. W. C. Arnold: Now this -- this is -- this is just a little segment of --

Justice William J. Brennan: -- a little late for the --

Mr. W. C. Arnold: If you're to go outside of the published record, why then I don't know how far you go but then is just --

Justice William J. Brennan: Well, I'm asking -- I'm asking --

Mr. W. C. Arnold: -- a little segment of it.

Justice William J. Brennan: I'm asking only of the published record, whatever is the official record of the Territorial legislature.

Mr. W. C. Arnold: I have no reason to believe that this is an official record of the -- of the Territorial legislature.

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

I don't know where he got it.

I wouldn't know where to get it.

Justice William J. Brennan: But there is a certificate (Inaudible) -- has the certificate of some territorial officials, I remember it, that this is the record, we can't find it offhand, I saw it earlier.

Mr. W. C. Arnold: Well, I'm sure that it's not a part of the records of the Territorial legislature.

I -- I'm sure of that.

Justice Hugo L. Black: Do they not keep records of the bills and the amendments?

Mr. W. C. Arnold: The bills that are enacted in the law and they keep record of amendments offered on -- on the floor of the House in a published Journal.

Justice Hugo L. Black: These were enacted into law, was it not, as amended?

Mr. W. C. Arnold: No.

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

Justice Hugo L. Black: Are they -- it was not the bills that -- if so, (Inaudible) legislated by the year the numbers of bills, if they had numbered these bills are they the ones that finally passed --

Mr. W. C. Arnold: House Bill 3 --

Justice Hugo L. Black: -- (Voice Overlap).

Mr. W. C. Arnold: -- with amendments was enacted into law but not -- but this version here is not -- was not enacted into law.

Chief Justice Earl Warren: No.

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

Mr. W. C. Arnold: Well Mr. Justice, I have never indicated at all and I thought it was a forgery or -- or spurious in any fashion.

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

Justice Hugo L. Black: Why not?

Chief Justice Earl Warren: If it's a public document, why not.

Mr. W. C. Arnold: Well I -- I -- I have -- I have never heard or I know of no recorded case where -- where the rule of judicial knowledge is -- has -- has extended that far.

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

They are official documents, too.

Justice Hugo L. Black: It's not on the ground if we don't know about it or we can't consider it.

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

I don't recall --

Mr. W. C. Arnold: Well --

Justice Hugo L. Black: -- why (Inaudible) -- turns out on the ground that we could judicially notice it.

Mr. W. C. Arnold: This Court has repeatedly held that in this type of -- of matter, Mr. Justice Black.

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

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

Justice Hugo L. Black: Well, I --

Mr. W. C. Arnold: In other words that these questions are --

Justice Hugo L. Black: That doesn't touch the question here.

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

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

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

Mr. W. C. Arnold: Well, I -- I wanted -- my time is up and I close only this way.

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

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

Justice Hugo L. Black: Do you think that would be harmless error if they had done that?

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

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

Mr. W. C. Arnold: That question should be addressed to the Attorney General because he comes here asking that very thing.

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

We don't think it makes any difference.

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

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

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

Justice Charles E. Whittaker: Mr. Chief Justice, might I ask just one big question?

Chief Justice Earl Warren: Yes, of course.

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

Mr. W. C. Arnold: I think the answer to that is no, Mr. Chief Justice.

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

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

Justice Charles E. Whittaker: I see.

Chief Justice Earl Warren: Thank you.