STEPHENS, Circuit Judge.
Steven V. Hotch, a registered commercial fisherman, is appealing from a conviction and sentence for taking salmon for food from Alaskan waters in violation of a regulatory extension of statutory closing hours and contrary to a Department of the Interior regulation. Appellant admitted in the United States District Court and here admits that he is a commercial fisherman and that he committed the acts alleged in the complaint and that his “ * * * defense is that the regulation is invalid because prohibited by statute.” That is, that the applicable statute reserves to appellant the right to take salmon for personal food requirements. The text of the regulation is as follows:
“102.51 Prohibited by commercial fishermen.
“No commercial salmon fisherman shall take salmon for personal use during any commercial salmon season except in compliance with commercial fishing regulations, * * *.” 17 F.R. 1475; 50 C.F.R. § 102.51.
Sections 232 and 234 of Title 48 U.S.C.A., and all other code citations herein are codifications with amendments of the various Acts regulating fishing in Alaska.1
Section 232 2 makes unlawful the taking of salmon from Alaskan streams and five hundred yards seaward of any stream’s mouth except by means which may be termed hand tackle, i. e., “hand rod, spear, or gaff”.
Section 2343 permits the taking of salmon beyond five hundred yards seaward of a stream’s mouth by gear other than hand tackle (in this section “hook and line” is added) except during certain hours of each week during a season.4 This section is not limited to streams and five hundred yards seaward of [246]*246streams, but makes unlawful the taking of salmon in any American Alaskan waters by other than hand tackle except for special defined periods.
Salmon converge in numbers seaward of rivers up which they run for spawning. The taking of salmon in large numbers by seines and nets for commercial purposes in Alaskan waters is an important industry and salmon is an essential food for many Alaskans and their draft dogs. Experience has taught that the industry would be ruined and the inhabitants up stream would starve if unlimited taking of salmon for commerce were permitted in the streams or near their mouths.
As will appear by comparing them, § 234 covers much the same ground as § 232 but operates chiefly in waters beyond the five hundred yards outward from the streams’ mouths. In such areas the taking by other than hand tackle is permitted, for any purpose, but is limited to certain open hours each week. The closed hours, however, may be increased by Departmental regulation.
Section 232 contains a provision that taking salmon for local food requirements or for dog feed shall not be “prevented” and Section 234 contains a provision that the taking for the same use shall not be “prohibited”. The reservation in § 234, the section covering the area in which appellant was fishing, is limited by the clause “but such authority [the authority to increase the closed period] shall not be exercised to prohibit the taking of fish for local food requirements or for use as dog feed.” Since salmon may be taken in the extended sea area by means additional to hand gear and at any time except the closed period as provided by § 234 or an extension thereof, and since the food reservation of § 234 applies specifically to the extended time, we must conclude that appellant was well within his rights when he caught two salmon for food by other than hand tackle during an extension of the closed period unless the Regulation 102.51 of 50 C.F.R. (17 F.R. 1475) is valid as to appellant and validity prohibits him as a commercial fisherman from taking salmon for food during the extended' closed period.
It seems reasonable to assume that, the reservations as to food in §§ 232: and 234 were meant to permit the settlers, trappers and Indians to take-salmon in the established customary manner by traps and gillnets for immediate-use and as well for the continuance of the ancient practice of drying fish for use through the long, hard winters. Taking salmon by hand tackle during the-, seasonal runs for such purposes is impractical if not impossible. But this reason for the rule does not apply at all to-persons in the business of taking salmon, in the open sea for profit. If such person can catch enough salmon during the-open period of each week to profit by it-as a vocation, he cannot reasonably be-faced with local food requirements that, demand the taking of salmon during the-short extension of the closed period. The reservation then as to taking salmon for food requirements, as contained in § 234, cannot be reasoned into a bar to the-regulation of taking salmon by commercial fishermen if their practices interfere with the purposes of the fisheries-Act.
And it was found that their practices, do tend to frustrate the purposes of the-Act. It is easy enough for the few dishonest commercial fishermen, to the prejudice of the honest ones, to continue to. fish after the hour of the open period and when caught, to assert that they were-fishing for their own food requirements. Enforcement of the closed period would be impractical as to the policing; and inspecting would be intolerable and unreasonably expensive; and convictions in-court would be extremely difficult. We-think the food provision of the statute-cannot reasonably be construed to support appellant’s contention that the regulation is void or invalid as to him as a. commercial fisherman.
There is further support for the validity of the Regulation 102.51. Whether Congress could either directly or through, delegated authority prohibit all fishing in [247]*247Alaska including the ancient right to take fish for personal use as food, we need not decide, but we have no hesitancy in holding that it could prohibit commercial fishing “[f]or the purpose of protecting and conserving the fisheries * * 5 Fishing commercially is entirely an act of volition on the part of the fisherman and permission on the part of the government on terms prescribed by the government which of course must be the same as to all in any certain class.
The governmental Department in authority is of the opinion that closed periods during the salmon runs are necessary for the protection and conservation of the business of commercial fishing and the furnishing of food as hereinbefore outlined. It appears that the Congress and the Department were of the opinion that there would be too little cessation of commercial fishing without a reasonable regulation. Hence Congress enacted §§ 232 and 234 of Title 48 U.S.C.A. and the Department promulgated Regulation 102.51 of Title 50 C.F.R.
In studying and relating §§ 232 and 234, see texts in footnotes 2 and 3 supra, each to the other and to the instant case, it should be borne in mind, as we have heretofore stated, that they are parts of a codified version of an original integrated Act. Some apparent inconsistencies may be explained by comparing the code sections with the original Act.6
The point we now consider is one which counsel for appellant waived in his oral argument. Nevertheless we are of the opinion that it is our duty to consider it.
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STEPHENS, Circuit Judge.
Steven V. Hotch, a registered commercial fisherman, is appealing from a conviction and sentence for taking salmon for food from Alaskan waters in violation of a regulatory extension of statutory closing hours and contrary to a Department of the Interior regulation. Appellant admitted in the United States District Court and here admits that he is a commercial fisherman and that he committed the acts alleged in the complaint and that his “ * * * defense is that the regulation is invalid because prohibited by statute.” That is, that the applicable statute reserves to appellant the right to take salmon for personal food requirements. The text of the regulation is as follows:
“102.51 Prohibited by commercial fishermen.
“No commercial salmon fisherman shall take salmon for personal use during any commercial salmon season except in compliance with commercial fishing regulations, * * *.” 17 F.R. 1475; 50 C.F.R. § 102.51.
Sections 232 and 234 of Title 48 U.S.C.A., and all other code citations herein are codifications with amendments of the various Acts regulating fishing in Alaska.1
Section 232 2 makes unlawful the taking of salmon from Alaskan streams and five hundred yards seaward of any stream’s mouth except by means which may be termed hand tackle, i. e., “hand rod, spear, or gaff”.
Section 2343 permits the taking of salmon beyond five hundred yards seaward of a stream’s mouth by gear other than hand tackle (in this section “hook and line” is added) except during certain hours of each week during a season.4 This section is not limited to streams and five hundred yards seaward of [246]*246streams, but makes unlawful the taking of salmon in any American Alaskan waters by other than hand tackle except for special defined periods.
Salmon converge in numbers seaward of rivers up which they run for spawning. The taking of salmon in large numbers by seines and nets for commercial purposes in Alaskan waters is an important industry and salmon is an essential food for many Alaskans and their draft dogs. Experience has taught that the industry would be ruined and the inhabitants up stream would starve if unlimited taking of salmon for commerce were permitted in the streams or near their mouths.
As will appear by comparing them, § 234 covers much the same ground as § 232 but operates chiefly in waters beyond the five hundred yards outward from the streams’ mouths. In such areas the taking by other than hand tackle is permitted, for any purpose, but is limited to certain open hours each week. The closed hours, however, may be increased by Departmental regulation.
Section 232 contains a provision that taking salmon for local food requirements or for dog feed shall not be “prevented” and Section 234 contains a provision that the taking for the same use shall not be “prohibited”. The reservation in § 234, the section covering the area in which appellant was fishing, is limited by the clause “but such authority [the authority to increase the closed period] shall not be exercised to prohibit the taking of fish for local food requirements or for use as dog feed.” Since salmon may be taken in the extended sea area by means additional to hand gear and at any time except the closed period as provided by § 234 or an extension thereof, and since the food reservation of § 234 applies specifically to the extended time, we must conclude that appellant was well within his rights when he caught two salmon for food by other than hand tackle during an extension of the closed period unless the Regulation 102.51 of 50 C.F.R. (17 F.R. 1475) is valid as to appellant and validity prohibits him as a commercial fisherman from taking salmon for food during the extended' closed period.
It seems reasonable to assume that, the reservations as to food in §§ 232: and 234 were meant to permit the settlers, trappers and Indians to take-salmon in the established customary manner by traps and gillnets for immediate-use and as well for the continuance of the ancient practice of drying fish for use through the long, hard winters. Taking salmon by hand tackle during the-, seasonal runs for such purposes is impractical if not impossible. But this reason for the rule does not apply at all to-persons in the business of taking salmon, in the open sea for profit. If such person can catch enough salmon during the-open period of each week to profit by it-as a vocation, he cannot reasonably be-faced with local food requirements that, demand the taking of salmon during the-short extension of the closed period. The reservation then as to taking salmon for food requirements, as contained in § 234, cannot be reasoned into a bar to the-regulation of taking salmon by commercial fishermen if their practices interfere with the purposes of the fisheries-Act.
And it was found that their practices, do tend to frustrate the purposes of the-Act. It is easy enough for the few dishonest commercial fishermen, to the prejudice of the honest ones, to continue to. fish after the hour of the open period and when caught, to assert that they were-fishing for their own food requirements. Enforcement of the closed period would be impractical as to the policing; and inspecting would be intolerable and unreasonably expensive; and convictions in-court would be extremely difficult. We-think the food provision of the statute-cannot reasonably be construed to support appellant’s contention that the regulation is void or invalid as to him as a. commercial fisherman.
There is further support for the validity of the Regulation 102.51. Whether Congress could either directly or through, delegated authority prohibit all fishing in [247]*247Alaska including the ancient right to take fish for personal use as food, we need not decide, but we have no hesitancy in holding that it could prohibit commercial fishing “[f]or the purpose of protecting and conserving the fisheries * * 5 Fishing commercially is entirely an act of volition on the part of the fisherman and permission on the part of the government on terms prescribed by the government which of course must be the same as to all in any certain class.
The governmental Department in authority is of the opinion that closed periods during the salmon runs are necessary for the protection and conservation of the business of commercial fishing and the furnishing of food as hereinbefore outlined. It appears that the Congress and the Department were of the opinion that there would be too little cessation of commercial fishing without a reasonable regulation. Hence Congress enacted §§ 232 and 234 of Title 48 U.S.C.A. and the Department promulgated Regulation 102.51 of Title 50 C.F.R.
In studying and relating §§ 232 and 234, see texts in footnotes 2 and 3 supra, each to the other and to the instant case, it should be borne in mind, as we have heretofore stated, that they are parts of a codified version of an original integrated Act. Some apparent inconsistencies may be explained by comparing the code sections with the original Act.6
The point we now consider is one which counsel for appellant waived in his oral argument. Nevertheless we are of the opinion that it is our duty to consider it.
The regulation admittedly violated was Regulation 102.51 of Title 50 C.F.R., 17 F.R. 1475. However, the section in an amended form had been promulgated but was not in effect when the acts complained of were committed. The heading of the complaint mistakenly made reference to the regulation “as amended”, but the error was not carried into the body of the complaint. The District Judge rendered an opinion in the case in which he quoted the regulation as amended. Can the judgment stand?
The erroneous reference in the heading is of no moment, as an offense is correctly stated in the body of the complaint. Williams v. United States, 1897, 168 U.S. 382, 389, 18 S.Ct. 92, 42 L.Ed. 509. The offense charged is based upon Regulation 102.51, supra, before amendment, which appellant admits he violated and he admits his guilt unless the regulation is void or of no effect because of the food provision of § 234. We have already covered the latter point adversely to appellant’s contention.
We have heretofore quoted the original or unamended Regulation 102.51. As amended it reads:
Ҥ 102.51 Prohibited with commercial gear; exception.
“Within any regulatory area, district or section, all fishing for personal use with gillnet, seine or trap shall be subject to the laws and regulations governing commercial fishing during the period starting 48 hours before the opening of a commercial season for such gear and continuing until 48 hours after its close: * * 50 C.F.R. § 102.51; 17 F.R. 4347, May 13, 1952.
Counsel for the government and counsel for appellant in oral argument to us stated that in their opinions the differences between the original regulation and the regulation as it stood after amendment are not essential in this case, and we have come to the same conclusion.
It is common knowledge that commercial salmon fishermen, to the practical exclusion of hand tackle, take numerous fish by one spread of seine, net, or trap, as the fish congregate near and in the mouth of streams in which they spawn. The provision of § 234 which limits salmon taking to hand tackle except during the open periods provided therein, is a regulation definitely aimed at commercial fishing. Therefore, when [248]*248appellant took salmon with his commercial gillnet which is not a hand tackle at all and is not mentioned in § 234 as permissible for use during the closed period (it was neither a “hand rod, spear, or gaff” nor a “hook and line”), he was violating the commercial fishing regulation and was within the compass of the original Regulation 102.51 with which he was charged.
When he took the salmon with the gill-net he was of course violating a specifically condemned practice in § 102.51, as amended.
Therefore, even if the trial judge did find appellant guilty specifically of taking salmon with a gillnet, the conviction rested upon an act condemned by the original regulation.
Affirmed.