The opinion
DENMAN, Chief Judge.
I dissent.
(A) Because the gravamen of the court’s opinion is that the territory of Alaska has no more power over taxation than if it were a .state. This is in square conflict with Haavik v. Alaska Packers Association, 263 U.S. 510, 44 S.Ct. 177 , 68 L.Ed. 414 , which held valid am Alaska license tax on nonresident fishermen not imposed on resident fishermen.
The ground of the Haavik decision is that the Territory of Alaska has the same power of taxation that Congress has. In that case Haavik, “While residing in California * * . * was employed by appellee corporation, owner and operator, to serve as seaman and fisherman upon the sailing vessel Star of Finland. He sailed upon her to Alaska, and served with her there while she engaged in fishing, from the middle of May, 1921, until the middle of September.” That is to say, the fisherman upon whom the license fee was imposed was carried by his employer into commerce between. the state and the territory and fished while in the territory for his employer. Haavik was more certainly in interstate commerce than the fishermen in the instant case, of whom there is proof that the vast body of them *135 were transported to Alaska by employers to be there employed by the employers in fishing.
In this situation the Supreme Court held that the territory had the same power of taxation as Congress itself, as follows: “Plainly, we think, the Territorial Legislature had authority under the terms of the Organic Act to impose both the head and the license tax, unless, for want of power, Congress itself could not have laid them by direct action. Talbott v. [Board of Com’rs] Silver Bow County, 139 U.S. 438, 448 , 11 S.Ct. 594 , 35 L.Ed. 210 ; Binns v. United States, 194 U.S. 486, 491 , 24 S.Ct. 816 , 48 L.Ed. 1087 ; Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87 , 39 S.Ct. 40 , 63 L.Ed. 138 ; Territory of Alaska v. Troy, 258 U.S. 101 , 42 S.Ct. 241 , 66 L.Ed. 487 .”
Continuing in the opinion, it reiterates that “We are not here concerned with taxation by a state.” Because it was not taxation by a state but by a territory with Congressional power over taxation, the court holds: “The license tax cannot be said to conflict with section 2, art. 4, of the Constitution — ’‘The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.’ It applies only to nonresident fishermen; citizens of every state are treated alike. Only residents of the territory are preferred. -This is not wholly arbitrary or unreasonable, and we find nothing in the Constitution which prohibits Congress from favoring those who have acquired a local residence and upon whose efforts the future development of the territory must largely depend. See Alaska Pacific Fisheries v. United States [ 248 U.S. 78, 87 , 39 S.Ct. 40 , 63 L.Ed. 138 ], and Alaska Fish Co. v. Smith, 255 U.S. 44, 47, 48 , 41 S.Ct. 219 , 65 L.Ed. 489 .” (Emphasis supplied.)
In support of its decision that the territory has the same power of taxation as Congress, the court cites the case of Territory of Alaska v. Troy, 258 U.S. 101 , 42 S.Ct. 241, 242 , 66 L.Ed. 487 . This case involved the Merchant Marine Act of June 5, 1920, 46 U.S.C.A. § 883 , requiring merchandise transported by water to move in vessels built in and documented under the laws of the United States and owned by United States citizens. Alaska was excluded from the limitations. The court held, inter alia, that the legislation did not violate § 8, Article I of the Constitution, which provides that “All Duties, Imposts and Excises shall be uniform throughout the United States.” Of this, the Supreme Court stated, “The questioned regulation relates directly to commerce and clearly is not within the usual meaning of the words of section 8, art. 1, of the Constitution.” (Emphasis supplied.) It held that, because Alaska was a territory and not a state, Congress had the power to make such a regulation of commerce.
Incidentally, the official report of the Haavik case shows that the appellant contended that the license tax of $5 was invalid because “Alaska permits anyone to take salmon for any purpose, but discriminates between residents and nonresidents in a matter in which interstate commerce alone is involved,” on which the court held that “none of the points relied upon by appellant is well taken, and the decree below must be affirmed.” In view of the Supreme Court’s reliance on Territory of Alaska v. Troy, supra, involving interstate commerce, this court’s position that the Supreme Court did not consider the interstate factor in the Flaavik case is clearly untenable.
I further dissent:
(B) Because the court’s opinion fails to apply to a territory’s legislation the many cases holding the presumption of constitutionality of its license tax and because of its failure to recognise tfyat the attacking fishermen have not maintained their burden of proof that the fee of $50 per year for the protection of its laws for nonresident fishermen is arbitrary or excessive.
It has long been established that there is a presumption against the attacking party that an assailed statute is constitutional. Supported by a long line of decisions, the Supreme Court in the recent case of Davis v. Department of Labor, 317 U.S. 249 , at page 257, 63 S.Ct. 225 , at page 229, 87 L.Ed. 246 , speaks of its heavy reliance upon the presumption, stating: “The problem here is comparable to that in another field of constitutional law in which courts are called upon to determine whether particular state *136 acts unduly burden interstate commerce. In making the factual judgment there, we have relied heavily on the presumption of constitutionality in favor of the state statute,” (Emphasis supplied.)
Likewise it has long been established that in an attack on a state taxing statute the burden of proof is on the attacking party. State Board of Tax Commissioners v. Jackson, 283 U.S. 527 , 51 S.Ct. 540 , 75 L.Ed. 1248 . 1 Basing their decision on fourteen prior decisions, the Supreme Court in Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 582 , 55 S.Ct. 538, 540 , 79 L.Ed. 1070 , states the rule with respect to attacks on a statute as violating the equal protection clause of the Fourteenth Amendment and the reasons underlying it as follows: “It is a salutary principle of judicial decisions, long emphasized and followed by this Court, that the burden of establishing the unconstitutionality of a statute rests on him who assails it, and that courts- may not declare a legislative discrimination invalid unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that the classification rests upon some rational basis within the knowledge and experience of the legislators. A statutory discrimination will not be set aside as the denial of equal protection of the laws if my state of facts reasonably may be conceived to justify it.” (Emphasis supplied.)
In accord with the “assumption that the classification rests upon some rational basis within the knowledge and experience” of the ■ Alaska legislature, we held in Anderson v. Smith, 9 Cir., 71 F.2d 493, 495 , that a license fee of $25 per annum on nonresident fishermen was not arbitrary or unreasonable, even though- the resident fishermen’s license fee was only $1 per annum. On this we accepted the theory of the Haavik case, which, 263 U.S. at page 515 , 44 S.Ct. 177 , 68 L.Ed. 414 , gives as a ground of legislative classification by which the license fee was charged to nonresidents and not to residents, the development of this remote frontier territory by its permanent residents.
These fishermen engaged in catching fish well could be “conceived” by the Alaska legislature as escaping all the various Alaska taxations of residents for municipalities and school districts and otherwise and likewise they are not being subject to the increased cost of living caused by the license taxes on many enterprises which increase the cost of services and goods of all kinds ■for which the residents are required to pay. Certainly appellants have not sustained their burden of proof that they are subject to other forms of taxation and its effect on the cost of living of residents. Nor has the burden of proof been maintained that there has been any change in the peculiar conditions existing in Alaska in 1924 as distinguished from the economically developed states warranting a classification of nonresidents fr.om -residents, of which the Supreme Court said in the Haavik case that the license tax “applies only to nonresident fishermen; citizens of every state are treated alike. Only residents of the territory are preferred. This is not wholly arbitrary or unreasonable, and we find nothing in the Constitution which prohibits Congress from favoring those who have acquired a local residence and upon whose efforts the future development of the territory must largely depend.” (Emphasis supplied.)
The question then is whether the increase of the license for the benefit of the Alaska government to nonresident fishermen from the $25 of Anderson v. Smith, supra, to the present $50, is so great that it makes the larger amount unconstitutionally excessive.
The law creating the $25 fee was enacted in 1933, Laws 1933, c. 30; that here for $50 in 1949. This court has repeatedly taken judicial notice of the enormously increased costs of all kinds in the last decades. Southern Pacific Co. v. Zehnle, 9 Cir., 163 F.2d 453, 454 . Cf. Annotation 12 A.L.R.2d 611 . In 1933 when the nonresident fee was fixed at $25 the country was in the grip of the great depression, wages were low and the National Recovery and Gold Demonetization acts were passed to increase prices. In this sixteen years be *137 tween then and 1949 was the second world war, with the great and now remaining rise in prices and rents which led to federal legislation to hold them from further rise. The cold war prevailing in 1949 well could have been considered by the Alaskan legislature as no restraint on their increase.
Not only were all the costs of Alaskan government greatly increased, but the same is true of the costs of collection from the hundreds, if not thousands, of evading nonresident fishermen hiding from the tax collector and the prosecution of the offenders as shown by the evidence adduced at the trial. Of the increased costs of collection, it is not necessary to show that they equal-led the amount collected, for there is presumed to be an excess of collections over cost to constitute territorial income for its governmental services rendered to and available to the nonresidents, held a valid purpose in the Haavik and Anderson cases.
(C) I dissent further from the failure to construe Section 41 of the Civil Rights Act, upon which appellants rely here.
The section of the Civil Rights Act here invoked, 8 U.S.C.A. § 41 , reads:
.Ҥ 41. Equal rights under the law
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed, by ■white citizens, and shall be subject to like * * * licenses * * * and ' to no other. R.S. § 1977.” (Emphasis supplied.) The words “white citizens” have been interpreted as giving this equal protection to citizens and aliens of all races. So interpreted, the Act means that “All persons [of all races] within the jurisdiction of the United States shall have the same right * * * to the full and equal benefit of all laws * * * as is enjoyed by white citizens, and shall be subject to like * * * licenses * * * of every kind, [as those imposed on white citizens] and to no other.” (Emphasis supplied.)
Cf. Collins v. Hardiman, 341 U.S. 651 , 71 S.Ct. 937, 942 , where the court construed the conspiracy clause of the Act as not applying to the civil rights interfered with by “a lawless political brawl, precipitated by a handful of white citizens against other white citizens,” after stating the purpose of the Act is “to put the lately freed Negro on an equal footing before the law with his former master.”
The judgment should have been affirmed.
. Recently restated by the Supreme Court in Norton Co. v. Department of Revenue of State of Ill., 340 U.S. 534 , 71 S.Ct. 377 .