Alaska v. Arctic Maid/Dissent Harlan

Mr. Justice HARLAN, dissenting.

It is with reluctance that I have reached the conclusion that this Alaska tax offends the Commerce Clause of the Federal Constitution. (Art. I, § 8, cl. 3.)

The Court of Appeals concluded that the taxable event under this statute is the process of freezing fish aboard ship, 277 F.2d 120. This conclusion was based on the words of the statute (quoted at pages 199-200 of the Court's opinion in 366 U.S., at page 929 of 81 S.Ct.), the fact that obtaining fish for local sale or consumption is untaxed, and the fact that the present tax 'applies whether or not the fish are caught by gillnetters owned by or under contract to appellants.' Id., 277 F.2d 125-126. Accepting, as I do, this construction of the statute, I agree with the Court of Appeals that a privilege tax directed solely at shipboard freezing, preparatory to interstate shipment, exceeds the limitations the Commerce Clause imposes upon the States, for in its requirement of a license such a tax asserts a power to deny what is a necessary local incident of the right to make interstate purchases. See York Manufacturing Co. v. Colley, 247 U.S. 21, 38 S.Ct. 430, 62 L.Ed. 963.

As I understand the Court's opinion, it seeks to meet this objection by denying that the Alaskan tax is imposed on the privilege of freezing fish aboard ships. It says that the tax is rather upon the local taking or purchase of fish by or for freezer boats. But even on this view of the incidence of the tax, I could not agree that the present tax on obtaining fish by or for interstate freezer boats would be constitutional in the given circumstances, for I do not think that Alaska can place a higher tax on the obtaining and freezing of fish for interstate markets than it places on the obtaining and freezing of fish for local markets. See Commonwealth of Pennsylvania v. State of West Virginia, 262 U.S. 553, 596, 597, 43 S.Ct. 658, 665, 67 L.Ed. 1117. As shown in the Court's opinion, under the Alaska scheme of taxation freezer boats, which operate solely in interstate commerce, must pay a tax for taking and freezing Alaskan fish for later canning in Washington which is four times that imposed on a local freezer whose product is sold to consumers in Alaska. A shore-based freezer who sells his frozen product to Alaskan canners pays no tax at all.

For these reasons I would affirm the judgment of the Court of Appeals.