Plaintiffs are owners of a hotel on the MeKenzie river, in Oregon, and engaged in the business of renting boats with oarsmen to persons who fish in that river. Defendants are public officers of the state, charged with the duty of enforcing chapter 185 of the General Laws of Oregon for 1931 (page 295) which regulates fishing on this stream.
Plaintiffs sued to enjoin the enforcement of this act on the ground that its provisions are in conflict with tho Fourteenth Amendment to the Federal Constitution, and thereupon filed a motion for temporary injunction, based upon the allegations of the complaint, and defendants a motion to dismiss. Hearing was had before the court organized as required by section 266 of the Judicial Code, U. S. C., title 28, § 380 (28 USCA § 380).
A resume of the allegations of the complaint follows: Plaintiffs are citizens of Oregon, and defendants are the game commission and game supervisor, respectively, of that state, whose duty it is to administer and enforce all the laws of the state respecting protection, preservation, and propagation of game fish therein.
Plaintiffs have for many years operated “Thomson’s Resort” on the McKenzie, a navigable liver, and at this hotel engaged in the occupation of entertaining and providing for tourists and guests induced thereto, by the fishing in this stream. A lucrative business has been built up by the expenditure of a large amount of money in procuring a number of rowboats, which plaintiffs have rented, together with oarsmen to operate same on the nver, to tourists and guests for the purpose of angling.
The fishing in the McKenzie below its confluence with Blue river is not good after June 15th of each year, and for many years plaintiffs have transported patrons and boats to a point on the McKenzie a number of miles above tbe mouth of Blue river, and thence rowed their guests down tho McKenzie so that the patrons could fish from the boats on the passage. This was a principal inducement to patronize the resort, and a source of great profit to plaintiffs, who themselves for many years fished from rowboats on tbe McKenzie.
The Legislature of the state passed chapter 185 of the General Laws of Oregon for 1931, an alleged law, which provides that after the passage of the act it shall be unlawful to fish with hook and line from any boat or other floating device in tbe waters of the McKenzie river above the confluence of Blue river therewith, and provides a penalty for violation.
The defendants threaten to enforce this statute and will prevent plaintiffs from carrying on their business above set out, and it will be destroyed, to plaintiff’s irreparable injury exceeding $3,000.
This statute, plaintiffs claim, is in violation of tbe Federal Constitution because it abridges “the privileges and immunities of plaintiffs, and is unreasonable and arbitrary and deprives them of liberty and property without due process of law, and denies them the protection of the law.”
Plaintiffs conclude “that also by the provisions of said alleged law, persons owning property along or upon the banks of the McKenzie River, above the mouth of the Blue River, are given a monopoly of the fishing in the river adjacent to their said lands, and plaintiffs and their guests are excluded and prevented from fishing in said river at said points, and the owners of land along the banks of said river, as aforesaid, are thereby granted rights and privileges that are denied to these plaintiffs.”
It is a well-established rule that a state by virtue of residuary sovereignty controls the fish and game within its boundaries, as representative of its people and for the common benefit of all its citizens, and to that end it may regulate or prohibit fishing within its borders. Manchester v. Massachusetts,
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Until actual capture has been effected no property is acquired in the denizens of the wild. Except by legal fiction, Oregon has not, strictly speaking, a proprietary right in the fish in its streams. See Missouri v. Holland,
The privileges and immunities guaranteed to the citizens of the United States by the Fourteenth Amendment do not include a right to share in the heritage of the people of Oregon, by fishing in the McKenzie river or any other stream within that state. Nor may any person fish in any such bodies of water solely by virtue of his citizenship in the United States. A right to take from the fisheries held in common by the citizens of Oregon is acquired only through membership in that body.
The Supreme Court of Oregon, in passing upon this subject, has said: “Before such privileges can be infringed it must satisfactorily appear that the authority of a person to take and catch salmon in the Columbia river is a right which is guaranteed to, and may be exercised by every citizen of the United States, though he may be a nonresident of the states of Oregon and Washington.” State v. Catholic,
Especially if it appear that reasonable classifications have been made in an effort to protect the fish, the property of plaintiffs has not been taken. For, in the enforcement of statutes looking toward the conservation of the food fish in a particular state, special instruments of violation may appropriately be outlawed, regardless of the time of acquisition. Miller v. McLaughlin,
Therefore it must be concluded that the protection of property rights, and the equal protection of the laws vouchsafed by the Fourteenth Amendment, depend entirely upon the same principles, when applied to regulation of the fisheries of a state. See Patsone v. Pennsylvania,
A limitation, however, is that the real purpose of the legislation must be within the scope of the residuary sovereignty and appertain to the protection of the wild life, for the Federal Constitution does not permit a state, under the guise of conservation of fish, to work out ulterior designs. Foster Packing Company v. Haydel,
Plaintiffs allege that the state officials named are required to enforce laws for the “protection, preservation and propagation of game fish” and that the fishing in the McKenzie river below the mouth of Blue river is not good after a certain date each year. No allegation is introduced tending to show the law was passed' for any other purposes than those within the scope of the authority of these officials, and since at the same session statutes were passed regulating in the same manner portions of the Deschutes and Ump-qua rivers, it is assumed the motive in each case was to prevent exhaustive methods of fishing and obtain the widest distribution of the food fish.
Since the assumption is accepted that the act was passed to foster the game fish of the state, it remains only to determine whether the classifications of the law were
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unreasonable and arbitrary. The plaintiffs’ complaint docs not point out specifically wherein the classification, made by the Legislature is void, except that special privileges are granted to riparians. The legislative act docs not set out its purposes nor the basis of the classification. But tho plaintiffs are attacking a law which is apparently drawn to carry out a power vested in the state. It is therefore incumbent upon them to point out specifically wherein the státute exceeds tho power of the legislative body of Oregon. If no conflict with the constitutional clauses is patent, the law will be construed as a valid enactment. The Supreme Court of the United States has lately laid down this canon: “Why these provisions were inserted in the statute rve are not informed, but we may assume, until the contrary is shown, that a state of facts in respect thereto existed which warranted the Legislature in so legislating.” Wampler v. Le Compte,
In Lindsley v. Natural Carbonic Gas Co.,
No fact is alleged upon which to base the contention that the state power of classification has been exercised unreasonably. The plaintiffs concede there is a basis for discrimination between fishing in the upper and lower McKenzie by the allegation that fishing is not good below the mouth of Blue river at certain periods. If there is a basis in fact for the classification, it is a well-settled rule that the legislative power of a state may place different streams or bodies of water under varying restrictions with respect to fishing therein. State v. Blanchard,
The history of legislation regulating fishing is replete with, statutory prohibition of various devices which tho particular state for the time conceived were peculiarly destructive of fish. Provisions against seines, nets, traps, dams, and weirs are widespread, and in many cases antedate the Federal Constitution. Snag poles, set lines, spears and tip-ups have been forbidden in various jurisdictions. See Muska v. Apel (Wis.)
Regulations forbidding any other method of fishing except by a polo and line have been upheld. Peters v. State, 96 Term. 682,
The view is presented that since Oregon has limited the number of fish which can bo taken by an individual in a day, any classification of the devices by which this number is obtained would be arbitrary. Some color for this argument is found in the fact that a prohibition against a pump gun was held arbitrary where tho statutes provided a hag limit, and another typo of gun equally if not more destructive was not forbidden. In re Marshall (C. C.)
Tho McKenzie is a navigable river, and therefore the conclusion in the complaint that the riparian owners have been granted a
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monopoly of fishing in this stream is unjustifiable by the law. It has long been established in Oregon that “the owner of uplands bordering on navigable water has no title in the adjoining lands below high-water mark, nor any rights in or over the adjoining waters as appurtenant thereto.” Hume v. Rogue River Packing Co.,
The state has declared a navigable river between the lines of the ordinary high waters thereof to be a public highway for the purpose of angling, hunting, or trapping thereon, to persons who have complied with the license laws. Oregon Code, 1930, § 39-335. Obviously the plaintiffs or their guests, or the riparian owners, with equal freedom may fish from the banks of a navigable stream below the high-water mark. So far as concerns the person who engages in fishing, the law is general in its application. The landowner may fish from the banks of this navigable stream, so may the plaintiffs, and so may the citizen of Oregon who lives two hundred miles away. None of them may fish from a boat. Each is equally protected by the law. State v. Blanchard,
Besides, the right of fishing from a boat amounts in fact, although not in law, to a special privilege which, up until this enactment, belonged to that small body of persons who were] able to own boats on the McKenzie, or hire them, with oarsmen, from plaintiffs. “There are also other considerations which might determine the Legislature in the enactment of laws, the purpose of which is to protect the fish and game of the state. One of such considerations is the desire on the part of the Legislature to permit the largest Use of fish and game compatible with the reasonable protection thereof.” In re Makings,
The temporary injunction is denied, and suit dismissed.
SAWTELLE and MeNARY, JJ., concur.