Alfred v. Hagen, Appellant, v. City of Palmer, Appellee, 268 F.2d 209 (9th Cir. 1959)

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US Court of Appeals for the Ninth Circuit - 268 F.2d 209 (9th Cir. 1959) May 18, 1959

Boyko, Talbot & Tulin, Anchorage, Alaska, Edgar Paul Boyko, Los Angeles, Cal., for appellant.

John D. Shaw, Palmer, Alaska, for appellee.

Before POPE, CHAMBERS and HAMLEY, Circuit Judges.


The judgment of the district court in this criminal case tried de novo in that court on an appeal from the magistrate's court of the City of Palmer, Territory (now State) of Alaska, is reversed with direction to dismiss the complaint.

The complaint charges that Hagen did "wilfully fail to file a sales tax return for retail services made and performed during the month of August, 1956, in violation of Section No. 6, Ordinance No. 40, and contrary to said ordinance of the City of Palmer, in such case made and provided, and against the peace and dignity of the People."

Of course, brevity is a virtue in criminal charges, but the factors of who, what, when, where and how should always be checked before one sends a complaint forth. Here there is no allegation by way of fact or conclusion that Hagen had any duty to file a sales tax return. The complaint does not say that Hagen made any sales or performed any taxable service or that he collected any sales taxes.

Furthermore, the case tried on a stipulation of facts teeters because it is doubtful whether the stipulation includes the element of willfulness, which is in the Palmer sales tax ordinance.

Thus, we cannot accept the invitation of the appeal to pass on the validity of Palmer's sales tax ordinance.


POPE, Circuit Judge, concurs in the result.