*1 462
Argued May 16, part part reversed affirmed in June petition rehearing August for denied ANTHONY et al. VEATCH et al.
COLUMBIA RIVER FISHERMEN’S PROTEC TIVE UNION et Intervenors al., (2d)
220 P. 221 P. (2d) *6 Ryan argued appellants for H. the cause Thomas Anthony respondents. the brief were On and cross Pelay, Eyan Pelay, all of Portland. Jr., and & Attorney argued General, Assistant Quesseth, Cecil appellants. respondents With and cross for the cause Attorney George Gen- Neuner, him the brief was on Oregon, both of Salem. eral of argued intervenors- for the cause
Ben Anderson appellants. were respondents the brief On cross of Portland. Franklin, Anderson & Justice, Before Chief Boss- Brand, Belt, Lusk, Justices. Latourette, man, Hay, J. HAY, plaintiffs case is the owner in this
Each of the commonly type fishing appliances operator taking gear”, from of salmon “fixed for the called pound specifically, or fish nets River, the Columbia per- opinion, traps. refer to these In this we shall “fixed-gear “plaintiffs” fish- as or as sons either praying They brought action for this ermen”. declaratory judgment declaring Chapter Oregon adopted people the state of Laws through Oregon 2, 1948, on November the initiative *7 be unconstitutional. are the members of the Fish Com- defendants
The Oregon Master the State mission the State of of They referred to herein as “the will be Fish Warden. persons, who are owners other Certain Commission”. taking appliances operators for the of salmon of type “floating of the called River in the Columbia gill-nets, incorporated specifically, and an gear”, drift gill-net in are fishermen members whose union labor by per- in the action intervened River, the Columbia These will court. intervenors circuit of the mission gill-netters”. as “the to herein referred be prohibited taking The initiative act salmon, of salmon tront or steelhead in of the waters of the Columbia Eiver or in the its tributaries state of Ore- gon by gear, proviso means of fixed apply fishing by the act does not Indians under regulations taking propa- Federal or to fish for gation purposes by or scientific the state or national governments. complaint alleges
The that the initiative act is un- respects constitutional in several which will be set specifically forth hereunder. The commission an- contending swered, the act is reasonable exer- police power cise of the state and is in all respects gill-netters valid and constitutional. The an- alleging operation fishing gear swered, of the plaintiffs slaughter threatens an indiscriminate regardless in anadromous fish the Columbia Eiver, species, plaintiffs permitted if that, size or are fishing, continue such the salmon runs of the Colum- large destroyed, will in measure bia Eiver irreparable damage be to the gill-netters per- “and all engaged lawfully taking are in sons who said replied plaintiffs to both waters.” answers general denial. hearing, court,
After a on November holding, in effect, a decree as follows: entered (1) That section of the act is unconstitutional, beyond goes scope section in that such by prohibiting drag of the act use of title seines any purpose specified, whatever the waters for purpose its the title of the act defines whereas only prohibition to be this connection of the use taking drag for the of salmon seines waters. (2) 3 is unconstitutional, That section in that *8 by pro- goes beyond scope title of the act any purpose whip hibiting what- seines for nse of de- of the act the title waters, in said whereas ever only purpose to be in this connection fines its taking whip prohibition seines for of the use of in such waters. of salmon
(3) in that unconstitutional, That section taking prohibits trout or steel- salmon salmon, appliances, the title whereas head means of fixed prohibi- limit the an intention to “evidences the act taking means.” of salmon such tion to the be con- was declared to remainder of the act The stitutional. appealed de- decree so far as it from the
Plaintiffs portions constitutional. act to be clared certain appealed parts of the from those The Commission portions 2,1, declared that of sections decree which gill-netters The of the act were unconstitutional. parts appealed of the decree which declared from those portions unconstitutional. of the initiative act were attacked the act herein Plaintiffs contend that fishing regulate attempt in the tidewaters an “within the a matter which is River, the Columbia jurisdiction and that States”, of the United exclusive They authority cite unconstitutional. no it is therefore suggest rationale of but contention, for such 91L. ed. 332 U. S. v. California, States United bring may Sup. extended be hereafter Ct. “particularly for control, federal within impel our which often reasons social-economic Supreme present Court”. States United only question concerned was case the state had title to States or the United whether 4 n
marginal comprising lands the bed of coastal waters beyond within a belt three miles in width mean low- water mark of the California littoral. It was held that such title argument, the United In States. government deny quali- did not that California has “a ownership navigable fied of lands under inland waters such as rivers, harbors, and even tidelands down to question the low water mark”, but did the rationale of Hagan, (U.S.) Pollard 3 How. 212, 11 L. ed. ownership necessary which held that of such lands is a sovereignty. incident of state As far as is material present to the (1) discussion, the Pollard case decided navigable that the shores of waters, and the soils under such granted waters, were not to the United States (2) Constitution, that new states have the rights, sovereignty, jurisdiction same over nav- igable original waters within their borders as had the states. The court reasoned that, at the time when country independence England, this won its from there general understanding among was no nations that each marginal beyond a owned belt of lands its foreshores. they independ- The individual colonies, when became right. ent did not claim states, Hence, while such right granted by was not the states to the United States, neither was it retained the states. It was simply nonexistent. Some countries, it was noted, and particularly England, Spain, Portugal, had made sweeping from time to time claims to dominion over expanses (See wide ocean, Selden, Dominion or Ownership 459) Sea, II, but such claims are longer. made no However, the idea that a nation has right of dominion over sort of cordon sanitaire beyond comparatively has, its foreshores modern gained widespread acceptance. times, The three-mile by all been acceded extent of such dominion has by appears have asserted been states, but Jessup, year early 1812. United as as about States Maritime Juris- of Territorial The Law Waters diction, 57.' dispute a title over
The Pollard case had do with regarded Bay. bay was reclaimed lands Mobile navigable terrae, to the title tidewater, intra fauces of its virtue soil under inhered in state sovereignty. Kendall, Or. Cf. Alsos Upon Union, into the admission of a state 886. underlying to lands of the United States the title *10 passes navigable to state, such state the waters within sovereignty”. of “local United States as an incident Sup. Oregon, L. 55 1267, 1274, 295 S. 79 ed. Ct. 1, v. U. Packing Rogue Co., 237, v. 51 River Or. 610; Hume P. Parker v. 865; 92 P. 96 West 391, 1065, 83 P. 246, Coquille Packing 21 P. Co., 510, 515, 822; 17 Or. Coast Johnson, v. 52 98 547, 549, Co. Or. Mill & Mercantile Rep. Andrus, v. 61 716; Am. St. Micelli Or. 132, 132 P. v. Commission, P. Atkmson State Tax 737; 120 84, 78, 161, P. 13, 62 P. 2d 67 2d 303 U. S. 461, 473, Or. 156 Sup. sovereignty 58 419. The 621, L. Ct. 82 ed. 20, over soils under nav states Union individual rights igable not to be confused waters regulation States must the United dominion self-protection necessity exercise over the in marginal belt. and its bed within the ocean navigable ownership of inland that extent To the decision not dis the Pollard was concerned, waters is supra. Indeed, v. California, States United turbed say which, in a so, footnote, to careful court was referring v. Mission Rock case United States to the
474 Sup.
Co., 189 391, U. S. 47 L. ed. 865, 606, Ct. reads, part, in as follows: “* * * ejectment The States sued in United Bay.
for certain lands situated in San Francisco The grant held the lands defendant under Cali- from grant fornia. This Court decided that the state was Bay passed valid because the land under the had * * * upon to the state admission its to the Union may why judgment There be other reasons litigation; that case does not bar this it is a but reason sufficient that this case involves land under open sea, land under the inland waters Bay.” of San Francisco opinion, implication There in our is, no to be drawn supra, from United California, States ra- might case tionale of at some future be time ex- deprive right regulate tended so a state of the navigable and control its within own inland Witsell, waters. Cf. Toomer v. 334 U. S. 92 L. ed. Sup. 1460, 68 1156. Ct. right state, either exercise of its sovereign capacity
police power, its trust for regulate capture prohibit people, and even to its navigable of fish in waters within its borders, has court, asserted this been is sustained authority. Withycombe, weight Monroe 84 Or. v. Hume, 227; State Or. 1, 5, 6, *11 22 and Jur., Am. Fish 808; Fisheries, section 34. subject right course, of the is, Such to valid exercise authority any pertaining to United States under authority regu such as the constitution, federal to navigation. and New commerce York 'ex late rel. Kennedy Becker, 241 S. 60 L. 556, v. U. ed. 1166, 36 Sup. Ct. 705. regulation, protection, preservation
The of fish boundary waters of the within Columbia Biver jurisdiction of the states are concurrent under the compact Oregon Washington, entered virtue year 188, Ch. in 1915. See into such states between Oregon, 116, 31, Ch. sec. 1915; sec. Gen. 20, Laws Washington, compact was 1915. Such Session Laws by Congress in Ch. 1918. to and ratified consented Supp. 1918, Anno. at Fed. 47, L., 40 Stat. Stat. 515; p. Winkle, Sons, v. J. & Inc. Van 179. Cf. P. McGowan L. ed. 574, 72 76, D. C. 21 F. 2d aff. 277 S. Or., 77, U. Sup. Kitzmiller, 259 U. S. 435; Ct. Olin Sup. L. ed. Ct. 510. 930, 933, may suggested be It be conflict is that there regulate right its inland in tween the to state’s navigable right States of the United and the waters navigation regulate same waters. commerce and necessary con is no It is that there well established rights. v. Massa Manchester flict those between Sup. 559. 159, 11 L. chusetts, 240, 262, 35 139 S. ed. Ct. U. may place any ob it is no state while true that And, any navigable upon waters without in or struction point permission (id.), Congressional in Supp. 76 F. Swift, Cf. volved herein. Le Clair 733. assigned upon hold court to failure of the
Error is “treaty” between states contravenes a act treaty Oregon Washington. so-called compact to. referred states, above between actually saying imply Appellants, so, without compact treaty sense this is a the constitutional superior VI), (Const. therefore, S., and, U. Art. They say brief: their state law. upon at this time effect “We call this Court treaty original purpose spirit of this superior ini to the the land and still the law of is tiative act *’’ # * question. *12 476 compact treaty.
Of course, the was not a A treaty independent a contract between nations. 63 J.,C. sec. 1. Treaties, The individual states of the any authority United have States no to enter into trea ty. compact S., Art. sec. I, 10, Const. U. subd. 1. The merely provided “regulating, protecting, that laws or preserving River, waters Columbia Oregon Washington over the States of have jurisdiction, any concurrent other within waters either of States, said which would affect said concur jurisdiction, changed, rent shall made, altered, be part, only amended in or in whole with the mutual approbation (For consent and of both States.” dis history compact, cussion of the of the interstate see Wollenberg, Compact, The Columbia River Fish 18 88.) Law Review, Ore. merely pro
The initiative act under discussion taking salmon, hibits the salmon trout, or steelhead appliances”. ap means of “fixed certain It does pear prohibition manner affects the jurisdiction Washington concurrent the state regulation protection over the fish in the Colum contrary, Washington, by River. bia in 1935 On process, prohibited fixed-gear initiative the use of appliances, Oregon simply brings act this state Washington respect. into line with in that That be- n ing so, the act does not violate either the letter or compact spirit between the states. Olin Kitz miller, 9, 348, C. A. 268 F. Union 349; C. Fishermen’s Shoemaker, 678, 659, 476, Co. v. 98 Or. 193 P. 194 P. 854; Sons, Inc., P. McGowan Winkle, J. & Van (21 supra F. aff. L. 76, 77, 2d 277 U. S. ed. Sup. 435), Ct. rel. v. Huse, State ex Gile 183 Wash. 2d 25. unconstitutionality ground Another asserted by Oregon impair attempt the ob- an that the act is *13 fixed-appliance ligation fish- contract of its 10, sec. subd. Const. I, 1, in violation of Art. ermen, remarkable contention connection, S. In this TJ. by the Com- licenses heretofore issued that made fixed-appliance constituted fishermen mission to the licensing provisions Fish under the the latter, (sections L.Or. 83-619,O.C.L.A.; 308, 83-601 ch. Code catching 1943), agents of for the salmon. of the state upon imposed licensees, as lo- restrictions fishing operations, maintenance of certain cation of payment have the we are records, fees, etc., effect, making contracts their licenses effect be- told, long as state, irrevocable as tween them argu- perform the thereof. The licensees conditions that the fisher- ment is buttressed the contention “required were licenses, on faith of their men, expenditure of thousands of dollars to make the permanent gear”, and that the state the erection of of thousands of dollars from has benefited to extent theory apparently, that is, catch. The the fishermen’s having are, effect, franchises, been is- licenses public. The amended com- for the benefit sued plaint contracts wherein the refers to the licenses as granted fixed-gear an fishermen “were irrevocable argument, right is the Indeed, and franchise.” by any supported although in the it is not brief citation authority. grantee of a It has been said franchise grantor. agent trustee of the 26 C. J., holds it as citing Franchises, Grove, Talcott v. Pine 23 F. 6, sec. (U.S.) 22 19 L. ed. 666, No. aff. Wall. 227. Cas., 13,735, privileges govern- special conferred Franchises are 478 upon belong,
ment
individuals, which do not
com
right,
country
mon
generally.
to the citizens of the
26
City
Eugene,
J.,C.
sec.
Franchises,
1; Elliott v.
135
right
Or.
294 P.
108, 113,
358. The
in the
waters of the Columbia River
one
common
all
Oregon.
Berg,
the citizens of
Driscoll v.
Or.
granted by
506, 293 P.
1 P.
611.
2d
The licenses
fixed-gear
the state to the
were,
fishermen
therefore,
Eagle
Fishing
not franchises.
v. McGowan,
Co.
Cliff
Rogue
Packing
70 Or.
P.
Hume
1, 14,
766;
v.
River
(51
supra
Co.,
237, 259,
Or.
83 P.
Plaintiffs further that the act is unconstitu- ambiguous, (a) in that it is tional uncertain and self- contradietory; (b) misleading preamble, it is in the prohibit proposes types to that it certain of salmon actually pro- fishing appliances, it fixed whereas (c) appliances; it fails all with fixed hibits They trap pound have made net. to a fish define (a). argument support no of speaks only preamble (b) to it is true As body taking of salmon, whereas, pro- taking is and steelhead act, of salmon trout extent, a is, certain as “Salmon” hibited well. may generic be said to in- and in a broad sense term, family Section 36, Salmo. clude other members Oregon, codified 1921, Laws as 105, Ch. General provides: L. section O. C. 83-303, A., ‘salmon’ used in “Wherever the word Oregon, the same shall be deemed and the laws of held to chinook, silversides, steelheads, include blue- sockeye species anadromous all backs, except as to steelheads in the trout, salmon Rogue the said river, where steelheads waters of game as fish.” are classified foregoing Although the does not in- classification does salmon, name all varieties of Pacific clude species general all anadromous salmon include applied means “Anadromous”, fishes, as and trout. “ascending spawn”. Diet. Oxford “The rivers family genus important [of the most far Salmo gen- black-spotted includes Salmonidae], Ency. erally 14th Britt., salmon and trout.” known Oregon Laws 438, 1947, as ed., Section Ch. 19:889. Oregon 1949, in Laws section Ch. amended duty protection, upon placing Commission *15 preservation, propagation, etc., fishes, certain in- spe- excepts specifically cluding of all “trout salmon, apparent including trout”, but steelhead cies, any upon provi- exception effect the such has act under discussion. of the initiative sions In event, even if the title was insufficient, the insufficiency prepared was cured the ballot title Attorney point the General. We shall discuss this appeal in further connection the cross of the Commission.
forAs the failure of act the to define the “pound general trap”, terms net” “fish rule is legislative contrary, in the that, absence intent to the relating commercial used in terms, when a statute presumed or commerce, trade are to have been used ordinary meaning. in their trade or commercial Statutory Sutherland, Construction, ed., 3rd 2, Vol. p. 442. The in evidence this case indicates that pound traps Commission classified nets fish as type being appliance. legislature, same apparently enacting chapter took same 1929, view 1929, Laws of sec. of which made it unlawful operate any pound trap net in certain of gave of the Columbia Eiver. waters This court description “pound an elaborate what we called a fish-trap” Withycombe, (84 supra net in Monroe v. Or. gill 227.) same .In the case we defined “pound net” Moreover, nets and seines. is a term of acceptance general as to be defined lexi trap consisting cographers “A fish as of a net or nets supported an to form enclosure awith narrow en Having purpose trance”. Webster. in-view the of the accept lexicographers’ present act, we definition obviously meaning sufficient, term statutory of a different definition. 50 the absence Am. 260. sec. Statutes, Jur., argue heatedly spon-
Plaintiffs somewhat grossly misleading pic- initiative bill used sors of advertising depicting furtherance of bill, torial *16 caught trap. a salmon a The evidence bear shows opponents type that the bill countered this by depicting advertisement a housewife snared in a gill plain- net. We understand, do not that however, tiffs claim that find we should the act invalid because type advertising sponsors. used
It is true that fish wheels and fish scows, operation prohibited by of which is the act, were al ready long (Gen. banned before this act was initiated validity 1), objection Laws, 1927,Ch. but it is no to the subject legis of an act that it matter of earlier covers lation. If earlier and later statutes are in irrecon yield cilable then the earlier must to conflict, the later by implied repeal. v. Fleischner, Winslow 23, Or. 228 P. A. L. Jur., R. 50 Am. 826; Statutes, Sec. 543. urged
It is that the act is unconstitutional that grants privilege immunity to one class citizens grant general. which it refuses to to citizens Art. Oregon point I, sec. Constitution. The is that it provisions apply states that its “do not regulations”. Indians under Federal Plaintiffs say exemption gives right this the Indians anywhere they to fish on the Columbia River that may fixed-gear might desire, and that the fishermen by hiring operate circumvent the law Indians their fixed-gear They appliances for them. fear, moreover, if that, act, under in the future should Indians de- gear, they permitted cide fixed will be anywhere they to do on so no matter river, where formerly they formerly long resided, how fished, as they regulation. are under federal There is some present in the evidence case that Indians use some fixed-gear taking appliances in salmon in the Colum- undoubtedly was one Falls,
bia River at Celilo fishing grounds, no their most but evidence ancient gear places they use such at other on river. adopted Washington, ini- an
The state *17 operation pound prohibiting nets the of tiative law traps In of fish waters that state. within the Campbell Case, State ex rel. 182 Wash. plaintiff, of who was the owner certain 2d the adoption prior trap the of the to locations, and, pound net initiative had held annual licenses under act, very pound sub- had had a nets, which he fished with fishing equip- stantial investment locations upon paid considerable ment, which he had the state a brought sum the constitu- taxes. He suit to test being tionality principal his contention act, of the exempted provisions a the act from class its namely, regulation, Indians federal citizens, under appropriate provision of the state violation of the “equal protection” the clause constitution the the 14th Amendment to federal constitution. reading legislative pur- court held that into law the exempt pose a class of citizens from restrictions justified only upon placed all other citizens could be unmistakably indicating purpose, by language quote: language did find in the act. We which it not exemp- considering language the “Now of the light purpose of the in the of the act as tion by terms, its we think relative and is disclosed regulation’ phrase qualifying Federal re- ‘under ‘fishing phrase by Indians’ as its ante- fers to single word ‘Indians,’ rather than to cedent, as relator. As we read ex- contended purpose emption, is to save manifest to the its using generally, the term ‘Indians’ in its Indians, rights may they yet sense, historic whatever re- regulation, fish, tain to under Federal in the waters of the state.”
Many provisions Washington initi ative act are identical with those of the initiative act question provisions respecting fishing here. The regulations Indians under federal are identical sug In in both acts. view of that fact, Commission gests adopt regard that we should in that the decision Washington Campbell court in ex rel. State supra. ought Case, We do decide whether we opinion do so or but we are not, arewe interpret bound, in event, to our own law in con formity certain treaties were entered into government the federal with certain Indian “na prior Oregon tions” admission of into the federal Union.
Of treaties, those that entered into in 1855 awith Oregon” may confederation called “Tribes Middle *18 example, being an be taken as the others similar in treaty, terms. Under that the Indians ceded the right, United States all their and title interest in cer- country occupied tain and lands theretofore by reserving claimed therefrom a them, certain de- apart scribed tract which was to be for exclu- set their an sive use and benefit as Indian reservation. The treaty following proviso: contained the right “Provided, the of That exclusive also,
taking running through fish in the streams bordering hereby said secured to reservation said all usual and accustomed Indians; at other stations, of common with citizens the United erecting curing and of for suitable houses States, the same.” L. Winans, 371,
In U. S. ed. United States Sup. government brought Ct. suit enjoin obstructing from defendants certain Indians fishing rights of Yakima nation in the of the exercise privileges in the Columbia Eiver in the state of rights they Washington, claimed under one of The defendants the above-mentioned treaties. con- right taking “the words, of fish at tended in common places, usual and accustomed with the all Territory”, only rights conferred such citizens of the territory or inhabitant state would have. as of argued treaty government when the was that, The acquired places fishing later which were made, part a defendants were of the Indian non-Indian country, subject occupancy the Indians with all rights occupancy gave, and object treaty to limit the to the was Indians rights occupancy their lands, and define certain treaty It held that was such lands. was outside government grant rights by to the Indians, a not grant rights the Indians to the a but rather rights government, a reservation those with rights granted. included an reserved exclusive right boundaries of the Indian within the fishing, right outside the reserva- and a reservation, territory. the citizens in common with tion, recognized by Indian tribes were Until possessing of na the attributes States the United government that the federal extent, least, at tions to Jur., Am. Indians, them. 27 treaties with entered into given treaty an Indian nation is 9. A sec. foreign It one with nation. and effect as force same *19 part the and cannot land, the law of be a becomes operation by courts or in in effect either annulled by legislatures. treaty, state Idem, sec. 10. Such a high contracting parties, as between the takes effect, provision contrary, in the absence of to the from signed, subsequent time it is the its ratification relates back to that date. 63 C. J., sec. 21. Treaties, argue although Plaintiffs the Indian treaties in- that, prior volved this case were entered into to the Oregon yet, they admission of into the Union, because by were not ratified until senate after the admis- Oregon they binding sion the Union, into are not upon Oregon. part However, as the are a treaties of the argument of the this land, law cannot be sustained. Olney, Washington, In C., C. D.E. Seufert complainant 200, 203, F. was the owner of certain uplands and shore lands on north bank County, Washington. River in Klickitat Columbia At expense, he considerable removed rocks and boulders portion making from of his shore thus lands, it possible for him to take salmon from the river operating a seine in front of such shore lands and land ing thereon. He fished this under license manner, from the from 1893 until state, without inter by any person. ference In 1908, the a half defendant, procured Indian of Yakima Tribe, breed a seine complainant, trespassed similar to that used upon fishing grounds therewith theretofore used brought enjoin Complainant latter. suit to sought trespass. justify his defendant acts premises by pleading treaty. the Yakima Indian authority Upon supra Winans, United States 662), (198 Sup. L. 371, 49 U.S. ed. Ct. the court treaty that, held while Yakima reserved to the right taking Indians “the fish at all usual and ac places, customed in common with citizens terri- *20 486
tory,” except at such “usual and nevertheless, accus- rights greater tomed their were no than places”, those fishing persons, of other and their “in should be done conformity equal with the of the an state, laws and on ’’ footing with rest of mankind. It was the held further permitted that of not the owners shore lands would be fishing places prior treaty use, to at the with which, places” Indians, the had been “usual accustomed fishing a from Indians of which the devices fished, type for their use- exclusive that necessitated the fishing places. possession of such Washington, 86 681, In 315 U. S. Tulee State of Sup. ed. it was held that the state Ct. L. power impose upon equally had Indians with the concerning regulatory of a nature others restrictions fishing the Indian and manner of outside of time the power it did not have the of but that reservations, purely requiring pay them a license fee of a revenue- appellant producing Indian that case character. The treaty gave an him unrestricted that contended places, right free the usual and accustomed to fish in any regulation of kind. While court from state placed broad an inter too that this contention held thought upon treaty, it pretation nevertheless upon revenue-producing imposition a license fee very right charge exercising their for “as Indians reconciled reserve” could be intended to ancestors treaty. construction of the a fair Washington court has insist that Plaintiffs adopted nature of the view of the state’s an erroneous regulation respect in the rights for that navigable that, reason, state, streams any weight Washington not entitled to decisions are They particularly authority. to Vail v. Sea- refer as borg, 120 in15, Wash. which the court said through Legislature that “the state its has the same right regulation property [food and control this navigable state] waters of the has property.” They other call state attention also supra (182 Campbell to State ex rel. v. Case, Wash. 24), spoke 2d 334, P. which the court of the state being pro owner the fish “in its waters in its prietary right” people for trustee all the and for *21 good. Washington the common Plaintiffs contend that regards ownership navigable its of fish in waters, so subject far as naturae, can be said to be the fish, ferae ownership, right being proprietorship, of a of a jus privatum jus publicum, being rather than the latter right sovereignty. despite a some rather However, expressions loose in the two decisions to, referred we Washington think that is clear that the it court cor rectly understands that the state holds to the title sovereign capacity. Seaborg, in fish its In v. Vail supra, approval, among court cites with other eases, Benson, Portland Fish Co. v. 56 Or. P. 122, 108 147, and Geer v. 161 Connecticut, 519, U. S. 40 793, ed. L. Sup. both 600, 16 Ct. of which hold that to title swimming navigable in free waters a state is sovereign capacity, in the in in state, its all trust for. of its citizens. See Tice, also State v. 69 403, Wash. P. L. 125 41 R. in 168, N.S., 469, which the court A., said: “The fish waters of the and the state, game belong people to forests, state, its sovereign capacity, through in their their who, representatives, legislature, have control sole may permit prohibit taking.”' or
thereof, their opinion, respect In not, our the act does grant any privilege to one class of citizens mentioned, 488 upon immunity same terms, does which, belong
equally citizens. all it connection, In another is reiterated the act privilege upon grants which, of citizens a to one class equally Oregon all. terms, is not available to the same argument 20. that, Art. sec. is I, Constitution, grants gill-net monopoly act fishermen effect, fishing course, if it Columbia River. Of does in the fixed-gear prohibition its and if have such effect, police power exercise of the not a reasonable general promotion of the com welfare for the inoperative Rogue munity, and void. Hume v. (51 supra Packing P. 237, 259, 391, Or. 83 Co., River 865); City Meyer, P. v. 32 Portland 1065, 92 P. Holman, 44 74 P. 21; 180, v. Or. 52 P. White 368, Or. supra (70 Fishing Eagle McGowan, Co. v. 933; Cliff 766); State, 110 Ark. v. 137 P. Lewis 1, 15, Or. Wright, Or. 154, 155; 161 S. State W. 349; Jur., 21 R. Am. Constitutional A., N.S., L. p. § 1056.
Law, 291, supra, Rogue Packing an Co., act, River In Hume riparian granted and to tidelands owners *22 appur- rivers, as on certain tidewaters owners above right to fish for exclusive lands, the tenant to their held violate the was to seines salmon with nets, “equal rights” far the constitution so clause of state right attempted grant in to fish to the exclusive as it navigable the act The court said that was waters. monopoly granted a in a it in that unconstitutional, formerly uninjurious was business, which lawful public possessed as common enjoyed and right. Wright, a case involved supra, in v. State
So validity required question aof license peddlers the court held that all, not of but class of one “equal infringed requirement the constitutional such guaranty, invalid. rights” therefore was nothing in that there is contends The Commission fishing monopoly grants of salmon a the act which says, applies contrary, gill-netters. the act On say, equally the state. Plaintiffs how citizens of to all if the act is indicates sus evidence ever, that the that, gill-net profitable to make will be its effect tained, gill-netters’ purposes, practical a fishing, all for argument monopoly. was made Driscoll The same 611), (137 supra P. 2d Berg, Or. 10 P. 2d Frederickson, Or. and in Radich tending was evidence Driscoll case there In the 352. prevented nonunion fish union fishermen that to show by laying catching fish certain drifts from ermen intercept any that a manner as out nets might fisher come into the nonunion have otherwise evidence Eadich case there was And in the men’s nets. anyone permit gill-net to use would that fishermen to a certain who refused submit drift certain part regulation and to bear a amount of grounds snags clearing expense drift in those cases that It held was other obstructions. any party court before the evidence was no there alleged. practices In so with concerned had been testimony by one fisherman there was at the case bar, gill- sought anyone to fish with opinion, who in his that, occupied by fishermen, union with in the drifts nets might regulations, find that complying their out rough him.” There was for make it “can latter fixed-gear fisher however, evidence, no prevented parties from here had been are men who plain- pointed fishing. out It is gill-net true, *23 490 that case cited
tiffs, neither above decided whether or gill-netters may lawfully appropriate not to themselves stretches of the river and exclude others therefrom by question but that is not before the force, court. It they may should be in obvious, event, not lawfully do so. gill-netters say
The that none of the cases relied upon by plaintiffs has held that the abolition of one type fishing gear discriminates between classes of They say, citizens. that the moreover, abolition of one type fishing gear give not does of another users type gear monopoly fishing, because, notwith- standing equal all abolition, fishermen have the right unprohibited to take fish means left un- They touched the law. cite in this connection State supra (96 421), v. Blanchard, Or. 189 P. 79, banning the defendant contended that a law set-nets discriminatory in certain waters was and hence un- thought constitutional. The court otherwise, held legislature might lawfully prescribe the method might which fish taken. also be See State v. Catholic, holding 75 367, 374, Or. 372, state, exercising police power, may protect a measure of its navigable by reasonably regulating fish in waters capture. manner of their court that con- cited, Connolly, nection, Barbier v. 113 U. S. ed. L. Sup. point legis- 923, Ct. to the that while class against discriminating favoring lation some and others prohibited, legislation carrying public is which, out a purpose, application, limited in its unconstitu- sphere operation tional if within the of its it affects persons similarly all alike situated. legisla
It is well settled that discrimination in persons engaged tion, as between in the same business, *24 merely have not be must a reasonable basis must arbitrary. Harper Galloway, Fla. 51 226, v. 58 So. 255, argne is basis that there no reasonable 228. Plaintiffs against fixed-gear be- fishermen, the discrimination for they gear say, that the evidence fixed shows cause, any operation type harmful in more other is no purpose types gear. of all It true that the is caught fishing gear in to catch that fish is fish, any gear perhaps and are are harmed more, fixed gear. caught fish other than less, harmed traps evidence, however, that fish and seines There was only salmon, but also smaller fish which are take not operation. usually gill-netting in not taken One that such smaller which are not fish, said witness accepted are “shoveled canneries, overboard”. gear up that the fixed is set evidence, There was also, may fishways natural described as in locations which be making follow their runs, channels the fish or relatively being greater that, because a the inference gear fixed channels, of fish in such concentration floating gear. These tend efficient than facts more for discrimina- is a basis that there reasonable to show fixed-gear fishing. against The belief a wider tion might obtained food be distribution angling prohibiting boats held to be en- from was constitutionality weight consideration titled providing prohibition. v. Dana, Thomson of an act 2d 764. 52 F. 759, “gentlemen’s agreement” spoke of a
Witnesses agree- gill-net regard Such to the use of the drifts. gill-net they recognized fishermen all ment, said, organized groups informally good repute. it, Under certain river clear stretches of fishermen sometimes even others to exclude therefrom, endeavor by force. The situation is similar to that which at one upon public time existed domain, when stockmen grazed their flocks and herds thereon without restric regulation. necessary tion eventually It became for government specific to allot tracts individual giving preference among even stockmen, based, other things, upon prior occupancy. It has been held that a may adopt legislation giving grazing preference state upon prior occupancy public to stockmen based lands. Idaho, Omaechevarria v. 246 U. S. 62 L. 343, ed. 763, Sup. Big 323. Ct. Cf. Butte Horse & Cattle Ass’n. 133 Or. 182, Anderson, 70 A. L. R. 399. Wampler Lecompte,
In
In this connection it to be observed that the proof arbitrary of upon burden of classification rests party asserting supra the such. Thomson Dana, (52 763). P. 2d In that case, the court observed history legislation replete statutory of prohibitions of various devices, which, for the particular time, the state concerned conceived to be peculiarly pro destructive of fish. It held that the angling illegal of from hibition boats was not an de- property due owners, without privation boat of of equal protection of the process nor a of denial law, the common for food fish The laws. conservation paramount good a to be was held consideration, infringe regulations end did to that reasonable equality constitution. of the federal clause up may be built whatever businesses court said that angling, the particular fishing, on a method of operators that the busi- realized must have thereof subject and were sufferance, transacted at nesses were policy conservation to destruction “whenever required.” of fish the stream “ * * * say perhaps It will be sufficient com the unreasonableness arbitrariness taking plained prohibiting consist and rivers and fish from the Pacific Ocean harbors adjacent purse thereto means of a seine, while permitting taken therefrom with nets, be set * * * drag gill pound nets, seines; It nets, plain justify lengthy seems too discussion that presents judicial, legislative, this contention not a * * * question. au It is well sustained legislative thorities that the determination of such upon questions courts, is conclusive unless manifestly appears regulations imposed accomplishment have relation to the cannot ” [Citing purpose cases] in view. Lubetich F. 2d Pollock, 237, 242. opinion, police state, our
In
under its
*26
prevent
power, in
to
order
the extermination of food
bring
may lawfully pre
about their increase,
and
they may
which
be taken.
methods
scribe the
State
808).
supra (52
1, 6,
Or.
The act
Hume,
under con
equally
persons;
applies
say,
all
that is to
sideration
gear
persons
fishing
forbidden to use
are
fixed
all
proper
Eiver.
in the Columbia
This
ais
for salmon
police power.
exercise
Sherrill v.
Ark.
State, 84
Maryland,
470, 106 S.
967, 969;
W.
Smith v.
18 How.
(U. S.)
pro-
L.
71, 75, 15
ed. 269. The fact that such
may prevent
property
appli-
hibition
the use of
plaintiffs
ances
owned
now
does not affect the
constitutionality
They acquired
prop-
of the law.
erty
knowledge
law-making power
with the
that
might
away
right
at
time take
it for
use
purposes.
fishing
City
Meyer,
Portland v.
32 Or.
It is contended that in the initiative act gill-netters creating had the ulterior motive of monopoly fishing by destroying in their favor com- petition. argument Reference is made to their in the pamphlet “indulged voters’ said, which, in the greatest exaggerations and misstatements”. is in- It may presume sisted, moreover, the court people Oregon gave to the measure the care, study legislature presum- consideration and ably given would have it. argument
The is not new. The Richard W. late Montague special pamphlet pub- took in a note of it Oregon System lished in 1914,entitled “The at Work.” heading, (p. 263), "Under Protection of Salmon he said: regula- “In 1908 the bills for the were submitted every industry,
tion of the salmon which served have opposed popular legislation writer for his dread- majority roundly example. ful so ignorant stupid denounced these critics as thoughtful men included the and most writer * * * acquaintance. are of his Here the facts: Oregon great is a business of Salmon importance. The fishers and economic divided gill-netters canners are camps, into the down-stream two hostile seiners, up-river wheel *27 surely they rapidly and were fishers. Between them exterminating enough force mustered but each the fish, every legislature to block session
in the regulation destruction. of its form of effective something length must became evident At go industry this to ruin. In would or the be done camp juncture itself to the initiative each betook relegating style presented of other’s a bill and of existence.” out say people on deter- author went to by a on did bills, to “No” both and so mined vote ensuing majority, session of “and at the handsome lobby legislature a and chastened salmon meek conforming to the recommendations welcomed a bill last commission, at of state conservation protection a and a little real to noble fish afforded industry. failing I submit a more of this a little ignorance stupidity applied of and earlier would kind captains of been than the wisdom of the have better industry.” Montague (p. 265) Mr. further: said composite purpose “The voter whose mind and appears portrayed by
are these votes be one jealous rights privileges, his and own as most government actually, men resolute to his are; see theoretically, deriving just powers its as well as governed, politics and from consent of the to see improvement desirous of his fair; clean open thoughtful institutions; advice, mindful opinion as to reasoned the means better- of well * * * visionary innovations; ment, but averse thought nearly of the best abreast the time in regulation, lag- and industrial of social but matters a ging bit behind, muddled, economies; on the subject, Professor writer James D. Another published in 1915 textbook “The Barnett, entitled, Operation Initiative, Referendum, Recall Oregon”. Dealing subject with the the means
of information available to voters he atten- calls (p. 93) provides tion to the fact that the law for an publication pam- official state known as “the voters’ *28 phlet”, secretary sent is of state to each the registered days general voter not later than 90 before a days special election and later than before a election at which measures are to submitted be pamphlet the voters. Such contains the title and text may argument by of each measure an contain the sponsors Any- of an in initiative measure its favor. opposing may arguments one the measure insert against thought pamphlet it. The author the only great majority was the means available to the getting knowledge of voters for first-hand of the opinion he submitted, measure and was of the general in extent to which the voters make of use it very pamphlet great the is uncertain. “But used a is supplement deal for do reference other of in- sources probably formation, has had most of its usefulness arguments in direction. in Moreover, this published pamphlet are in condensed form news- many papers, reach and thus voters.” Professor Bar- spite “In nett concludes: of the in difficulties the results of the several elections situation, are, general, competent intelligence evidence as to the the vote cast.” system legislation, no is, course,
There whether representative perfect direct, free from objectionable See P. all features. Y. Some Holman, Unsatisfactory Results under Instances Initiative .Oregon Constitution. also, Amendments See, Carey, Responsibilities Citizenship. H. New Charles that in the construction of statutes
It is said there no essential difference between those enacted by the initiative referendum and those enacted way. the usual 28 Am. Jur., Initiative, Referendum, and Recall, Sec. 43. enacted As statutes legislature, presumption there is that historical facts subject including oppos- in connection with matter, ing legislature were known to the at the time theories, adoption of the act. 50 Am. Jur., Statutes, 295; See. Jacobson Massachusetts, 197 U. S. Sup. ed.
L.
643;
Ct.
363.
Hodges Dawdy,
In
“So is as gear runs is to sub- and steelhead on the salmon populations. from tract fish the Hence the catch appear only for com- statistics be the criterion paring types gear.
one only “ type to increase the catch [*] [*] [*] gear It appears on the Columbia that the elimination other River has served gears rather escapement. than The trend of total increase the production annual in the Chinook salmon Colum- changed appreciably bia River in the nine- has (1928 years through 1946). teen under consideration interesting is This view of the fact that elimina- gear traps, (fishwheels, tion of fixed seines, nets) Washington set from the side of the presumably river was undertaken catch and increase the to reduce the
spawning escapement. in total increased that principally results 1934, the Washington have production Oregon Oregon [*] * not been catch has *. catch has been for catch, from the river, has A precisely probable despite dropped sharply as reason for planned. slight many years actually decline this While since is gill although from nets and seines, and trap Washington on the best sites were side many gill river, of the best net drifts and grounds Oregon on seine were side. In fishery practiced an intensive on the Colum- presumably competition River, bia there between types gear. the different The elimination of traps Washington and seines from the side gill Oregon for river left more nets and gill There to catch. were seines insufficient nets Washington up traps to make for the loss from seines, but the continuation of the use of all Oregon gave gear side rise to on the an actual * * Oregon’s landings increase report summary, states that In there no gear that the elimination of fixed conclusive evidence Washington of the river side increased on escapement salmon and steelhead, the use *31 gear injurious except to the run subtract- is
ing in- the however, We fish therefrom. note, landings Oregon to the total is attributed crease in the Washington gear from side of fixed the elimination gear of all on the of the use and the continuation Oregon side. preservation and of fish have that the
We said police power; proper scope game of the the is within judge legislature not the final that while the legislative power, action in limitations of that reasonably regard such as is be limited to must yet legislative necessary public it is benefit, the for the necessity primarily or ex determine the function adopted; the pediency that, when measures judicial apply upon the test called courts are legislative they au accord to will reasonableness, large legislature thority, people, a dis whether only public determining, interest not what cretion necessary for requires, are also measures but what presumption be protection interests, of such validity of the ing reasonableness in favor Shoemaker, regulation. Co. Fishermen’s See Union 854). P. In our (98 supra 476, 194 659, 674, 193 Or. conclusively show that opinion, does the evidence meet the test reasonableness, fails to the act presumption in thereof should favor think that the we prevail. cross-appealed from the de- has
The Commission holding that sec- assigning the court’s as error cree, scope beyond go of the act 1 and 3 of tions void so far as and that section the act, title of taking trout or steelhead prohibits salmon appliances. fixed operate any
Section makes it unlawful to drag seine in the Columbia River or its tributaries. The lower court held title of the act defines its taking purpose only prohibiting of salmon drag the use of whereas section 1 of the act seines, goes beyond scope of the title that it makes it drag operate any purpose. seines for unlawful This, the court violated Art. considered, IV, section *32 Oregon, provides “Every the Constitution subject, properly act shall but embrace one matters subject expressed connected therewith, which shall be provision appli in the title.” The constitutional by adopted to initiative acts cable as well as to those legislature. Turnidge Thompson, v. 89 637, 175 Or. Malloy 281; P. v. Co., Marshall-Wells Hardware 90 P. 303, 173 175 176 P. 267, 659, Or. P. 589. In this connection this court, referendum has held cases, considering whether the title an that, act is enough subject express broad to of the act, the court must take into consideration the ballot title fur attorney general. nished Such ballot title is part of the title of the and defects and omissions act, may legislative thereby. in the title be remedied State Putney, 222 Hawks, 503, v. 110Or. P. 497, 1071; State Sprague 110 224 P. 647, 279; Or. v. Fisher, 184 Or. 634, grounds, 1, 274, 203 2d reversed on other 24, 63, P. 2d 662. Or. attorney general
The ballot title furnished read as follows: IN
“PROHIBITING SALMON FISHING FIXED APPLI- COLUMBIA RIVER WITH Making Purpose: it construct unlawful to ANCES — or maintain in river or waters Columbia tribu- any pound trap, taries, fish fish net, weir, wheel, scow drag whip wheel, seine, seine, setnet, appliance, catching salmon, other fixed for salmon defining trout or cepting fish for Indians under federal a setnet and Ex- steelhead; seine. catching government in state and national propagation purposes, or scientific
regulation. Providing penal-
subjecting
gear
for
all unlawful
ties
and
violations,
appliances
proceeds
condemnation and sale;
arising
paid
from violations to
and fines
be
to state
for benefit of
treasurer
state fish commission.”
be observed that such
It will
title includes within
purposes
drag
of the act the abolition
seines
appliances
among the other fixed
mentioned.
provisions
of Art.
section
IV,
While
mandatory,
they
are
nevertheless
are
the Constitution
liberally
Orr,
construed.
to be
Colder
Or.
reading
entirety,
From a
of the act in its
503
proper
confine
whole.
It
the attention
to the one section
Klamath
be construed.” Driscoll v.
County, 122
518,
Or.
259 P.
515,
915.
prohibition
main idea
of the act was the
gear
fixed
use of
for salmon,
salmon
given
trout and steelhead. The Commission is
au-
classify
thority
fishing appliances.
all
law
Sec.
C. L. A.
83-213, O.
The evidence shows that
it has
drag
whip
gear,
classified both
seines as fixed
definitely prohibits
taking
2
and section of the act
by any
salmon trout or
salmon,
steelhead
fixed
appliance,
drag
would,
course, include
whip
83-605,
seines.
section
L. A.,
O. C.
Moreover,
by chapter
Oregon
specifically
amended
34,
Laws 1947,
drag
gear.
classifies
seines as fixed
Construing
separately,
sections 1 and 2,
general purpose
pari
reference to
the act and in
materia with each other and with all the other sec
opinion
language
we
tions,
are
of such
go beyond
scope
sections did not
of the title of
they
and therefore that
act,
are not violative of
Riggs
Art.
section 20 of the state constitution.
IV,
County,
supra;
P. 5;
Orr,
Polk
51
95
Calder v.
509,
Or.
296
167, 178,
1066,
137 Or.
P.
Schulderman,
Banfield
Dryer,
A. L. R.
298
89
Duncan v.
71
504;
548,
P.
Or.
Cunning,
P. 644;
Hunter v.
250, 285,
Or.
2d
in that it went being purpose of the act title declared which only by appli- taking prohibition fixed of salmon of the contrary already to the in this have held ances. We opinion. cross-appealed gill-net fishermen have also
The argu- assignments error and of decree. Their from the support main the cover in the same thereof ment in appeal presented ground cross as that of require discussion. no further and Commission, opinion circuit court erred are of the We holding act, and section 1 and 3 sections taking prohibits of salmon far as it of the act so appliances, to be violative fixed or steelhead trout provisions of section 20 the Con- IV, Art. portions Oregon. Those of the decree stitution remainder and the reversed, be so held will further remanded for will be affirmed. cause opinion. No proceedings with this not inconsistent appeal. party on this recover costs shall Rehearing Petition eor On petition. Ryan Pelay, for the Portland, & Oregon, Attorney George and Neuner, General Attorney Salem, General, Assistant Quesseth, Cecil cross-appellants, respondents contra. for Portland, for intervenors- Franldin, Anderson & cross-appellants, respondents contra. Justice,
Before Chief Belt,* Brand, Lusk, Justices. Hat, Latourette, Rossman, Denied.
[*] Died August 6, 1950.
HAY, J. appellants plaintiffs, are cross who rehearing petition this respondents, for filed have grounds (1) upon that the court asserted case based traps holding evidence that was fish that there erred only are us smaller salmon but not take operations, (2) gill-netting that ually and, not taken in holding does not con the evidence that we erred clusively fails to meet the the initiative act that show pre therefore, reasonableness, that, test prevail. sumption should of reasonableness in favor accompanied petition, Although we have brief no respects, opinion in and are our these re-examined petition well-founded. It is is not satisfied denied. therefore opinion that cause in this case we said
In our proceedings in- for further be remanded would Upon we further consideration therewith. consistent a re- record, in the state concluded, have inappropriate. proceedings be would for further mand be remanded with directions will therefore The cause it be dismissed.