Monroe v. Withycombe

165 P. 227, 84 Or. 328, 1917 Ore. LEXIS 238

• Court: Oregon Supreme Court
• Decided: May 22, 1917
• Status: Published

Opinion

Mr. Justice Harris

delivered the opinion of the court.

For the purpose of this appeal the demurrers admit the facts alleged in the complaint, and consequently throughout the discussion it must be assumed that the complaint speaks the truth notwithstanding the fact that the plaintiffs make frequent use of the superlative degree. The Columbia Eiver is a navigable stream. The waters along the north shore of the island are “the most valuable drifting ground for gill nets and the most valuable ground for operating seines on the Columbia Eiver”; and these waters have always been “recognized as a common ground for fishing.” Fish are classified as ferae naturae, and while in a state of freedom their ownership, so far as a right of property can be asserted, is in the state, not as a proprietor, but in its sovereign capacity for the benefit of and in trust for its people in common: State v. Hume, 52 Or. 1, 5 (95 Pac. 808); Portland Fish Co. v. Benson, 56 Or. 147, 154 (108 Pac. 122); State v. Catholic, 75 Or. 367, 374 (147 Pac. 372); Harper v. Galloway, 58 Fla. 255 (51 South. 226, 19 Ann. Cas. 235, 26 L. R. A. (N. S.) 794); 11 R. C. L. 1041. Upon its admission to the Union, Oregon was vested with the title to land under the navigable waters within the state, subject to the public right of navigation and to the common right of the citizens of this state to fish: Hume v. Rogue River Packing Co., 51 Or. 237, 246 (83 Pac. 391, 92 Pac. 1065, 96 Pac. 865, 131 Am. St. Rep. 732, 31 L. R. A. (N. S.) 396). Quoting the language of Mr. Justice Moore in Eagle Cliff Fishing Co. v. McGowan, 70 Or. 1, 12 (137 Pac. 766):

‘ ‘ The right of fishing in a navigable stream in Oregon is free and common to all the citizens of the state. ’ ’

In the exercise of its police power and for the welfare of all its citizens the state can regulate or even prohibit the catching.of fish: State v. Schuman, 36 Or. 16 (58 Pac. 661, 78 Am. St. Rep. 754, 47 L. R. A. 153); State v. Hume, 52 Or. 1, 6 (95 Pac. 808); State v. Catholic, 75 Or. 367, 374 (147 Pac. 372); Harper v. Galloway, 58 Fla. 255 (51 South. 226, 19 Ann. Cas. 235, 26 L. R. A. (N. S.) 794).

Farrell relies entirely upon the three licenses from the state for his asserted right to construct the traps, and consequently the legality of the disputed right depends upon the legality of the authority attempted to be conferred. If Farrell is permitted to erect the traps specified in the licenses the traps will have the effect of excluding gill net and seine fishermen from the waters in which it is admitted that previously all the citizens of this- state had a common right to fish. In short, if it is lawful to authorize Farrell to erect these traps it is lawful to prohibit all other citizens of Oregon from exercising a right that is conceded to be common to all, and to grant to Farrell alone the exclusive right to fish in waters covering an area of more than a mile in length by 200 or more feet in width; and if it is lawful to grant to a single individual the exclusive right to fish in that area it is likewise lawful to grant an exclusive right to fish in a larger area. The licenses relied upon are issued by the master fish warden. His position is created and his authority is defined by the legislature, and therefore he cannot do what the legislature cannot empower him to do. If the legislature cannot grant an exclusive right to fish to one person, then the state could not through its master fish warden authorize the construction of the three controverted pound net fish-traps when they will have the effect of conferring an exclusive right upon a single person, because the state cannot lawfully do indirectly what it cannot do directly.

In most jurisdictions where the question has been presented for ultimate judicial decision it has been determined that the legislature has power to grant to a single person an exclusive right to catch floating fish: Payne v. Providence Gas Co., 31 R. I. 295 (77 Atl. 145, Ann. Cas. 1912B, 65); State v. Leavitt, 105 Me. 76 (72 Atl. 875, 26 L. R. A. (N. S.) 799); Phipps v. State, 22 Md. 380 (85 Am. Dec. 654); Commonwealth v. Hilton, 174 Mass. 29 (54 N. E. 362, 45 L. R. A. 475); Heckman v. Swett, 107 Cal. 276 (40 Pac. 420); 2 Farnham on Waters and Water Rights, § 370. See also Gough v. Bell, 21 N. J. Law, 156, 165, and Gough v. Bell, 22 N. J. Law, 441, 459, criticising the prior case of Arnold v. Mundy, 6 N. J. Law, 1,78 (10 Am. Dec. 356). In Washington it has been held that it is lawful to grant to a single person exclusive control for a reasonable distance and for a limited period: Walker v. Stone, 17 Wash. 578 (50 Pac. 488); Halleck v. Davis, 22 Wash. 393 (60 Pac. 1116). In this jurisdiction, however, the rule is firmly established that the legislature cannot grant to one person an exclusive right to catch salmon, because when that which belongs equally to all the citizens of this state is taken from all and vested in only one citizen it is equivalent to transforming a public right, exercisable by all citizens alike, into a private right and a monopoly, exercisable by only one citizen, and it is therefore in violation of Article I, Section 20 of the state constitution which commands that “no law shall be passed granting to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens”: Hume v. Rogue River Packing Co., 51 Or. 237, 259 (83 Pac. 391, 92 Pac. 1065, 96 Pac. 865, 131 Am. St. Rep. 732, 31 L. R. A. (N. S.) 396); Eagle Cliff Fishing Co. v. McGowan, 70 Or. 1, 15 (137 Pac. 766). See also Slingerland v. International Con. Co., 43 App. Div. 215, 223 (60 N. Y. Supp. 12), affirmed in 169 N. Y. 60 (61 N. E. 995, 56 L. R. A. 494). Not even the legislature could have granted to Farrell the ex' elusive right to take salmon in waters where all the qualified citizens of Oregon have the common right to take floating fish; and therefore the licenses issued by the master fish warden do not legalize the construction of the traps which Farrell proposes to build. The question presented here is not whether all pound net fish traps are per se unlawful; but the sole question for decision is whether the traps which Farrell proposes to build would.be unlawful, and that question is determined by the effect which it is conceded that the traps would have upon the common right of all the qualified citizens of this state. It is not necessary to decide whether the state can lawfully empower one person to the exclusion of others, to take shell-fish from a specified area of a navigable stream whose bed is owned by the state; nor is there any need to discuss the right to erect wharves and other similar structures in aid of navigation, since the proper exercise of that right is easily distinguishable from the instant case where an attempt is made to authorize only one person to fish for salmon for his own personal benefit and private profit without any advantage to the public.

The defendants contend, however, that the issuance of the licenses to Farrell forecloses any subsequent inquiry concerning the existence of prior fishing rights. Since this contention arises out of the language found in Chapter 128, Laws 1913, such portions of the statute as are now material are here set out:

“It shall be unlawful for the master fish warden or the board of fish commissioners to grant a license to any person, firm, partnership or corporation, to build or set up fish-traps or any other fixed fishing appliance, or drive piles therefor, in any locality in or on the Columbia River and its tributaries in this State, when in their judgment the same interferes with a prior right of fishing. Section 1.

“Whenever any fish-trap or any other fixed fishing appliance is built or set up in violation of this act, the master fish warden of the State of Oregon is hereby empowered, authorized and directed to confiscate and sell said fish-trap, and to remove all the piling driven for such purposes immediately, and he is authorized and directed to pay into the hatchery fund of that district of the State of Oregon the proceeds of said sale. ’5 Section 2.

The argument of the defendants is to the effect that Chapter. 128, Laws 1913, prohibits the master fish warden and board of fish commissioners from issuing’ a license for a pound net fish-trap if in their judgment the trap will interfere with a prior right of fishing; that the enactment confers upon the officers power to exercise their judgment and discretion and that in the absence of fraud an exercise of such judgment and discretion will not be interfered with by the courts; that the issuance of the licenses to Farrell presupposes that the master fish warden and the board exercised their judgment and discretion and determined that the issuance of the three licenses to Farrell and the construction of the licensed traps would not interfere with any prior fishing rights; and that therefore the courts will not and cannot prevent the construction of the traps because to do so would be to interfere with and supervise the judgment and discretion iof the board and master fish warden. Before attempting to discuss the argument of the defendants it is proper first to make a brief survey of the legislation in force at 'the time of the passage of Chapter 128, because it may be assumed that this statute was adopted with reference to the laws then in effect. Section 5272, L. O. L., created a board of fish commissioners whose duty it was to appoint one master fish warden. The name and personnel of the board has since been changed, for it is now known as the State Board of Fish and Game Commissioners: Chapter 287, Laws 1915. The board was clothed with various powers: Sections 5273, 5282, 5313 and 5316, L. 0. L. Section 5237, L. 0. L., defined the closed season on the Columbia west of the Deschutes River. Section 5294, L. 0. L., made it unlawful to operate and maintain a pound net “without first having obtained from the fish warden a license therefor as hereinafter provided.” By the terms of Section 5298a, L. 0. L., a qualified person desiring to operate a pound net was required to “make application in writing to the fish warden” specifying the location of the pound net “and upon payment of a license fee as hereinafter provided, said fish warden shall issue to such applicant a license to operate the character of appliance desired in said application.” All licenses expired on the 31st day of March following their issuance: Section 5303, L. O. L. After the owner constructed a pound net he was required to file a map with the fish warden “giving the exact description and location thereof.” Section 5304, L. O. L.

It is not necessary' to pursue the suggestion found in Evanhoff v. State Industrial Acc. Com., 78 Or. 503, 516 (154 Pac. 106), and determine whether the present form of our state Constitution enables the legislature to clothe the master fish warden and board of fish commissioners with judicial power to inquire into and decide upon the existence of prior fishing rights, for the reason that it is obvious that the legislature has neither given nor attempted to give the warden and board authority to render a final adjudication of constitutional rights. There is a large class of cases where the legislature may vest in administrative officers power to determine when particular cases do or do not fall within a competent rule established by the legislature: 6 R. C. L., pp. 176, 179; and likewise the legislature may delegate to a board the power to stock a stream and close it against fishing, provided the order is not discriminatory: Portland Fish Co. v. Benson, 56 Or. 147 (108 Pac. 122); 11 R. C. L. 1042; and in such classes of cases the courts will not attempt to control or interfere with the judgment and discretion of the administrative officers. There is, however, an impassable chasm between the power to prohibit all persons from fishing in a. stream and an attempt to give one person an exclusive right to fish. The power of a board to close a stream exists only because the legislature, which delegates the power, itself has power to close the stream; but not even the legislature can lawfully favor one citizen with the exclusive right to fish in a navigable stream and consequently the legislature can neither directly nor indirectly empower a mere administrative board to do that which the legislature itself cannot do. All the citizens of Oregon have a common right to fish in the waters mentioned in the complaint and to deprive any one citizen of that right is to violate the state Constitution. To say that the mere issuance of the licenses closes any further inquiry into the existence of prior fishing rights because' the courts cannot interfere with the judgment and discretion of administrative officers, is to say that these plaintiffs can be deprived of a right without a hearing, without an opportunity to be heard, and even without notice. Chapter 128, Laws 1913, makes no provisions for a notice or a hearing and it makes no attempt to vest the warden or board with judicial authority; and therefore the issuance of the licenses did not involve any of the elements of a final judicial adjudication of the fishing rights of these plaintiffs. If, on the other hand, the warden and members of the board are considered as mere administrative officers without judicial powers, the licenses issued by them to Farrell are invalid because they operate to confer an exclusive right upon Farrell. While the legislature has power to authorize administrative officers to issue licenses, yet the validity of such licenses, when issued, is to be determined by the results which follow an exercise of the authority named in the license rather than by the mere words found in the paper called the license. While Chapter 128, Laws 1913, does not attempt to vest the warden or board with judicial power to adjudicate constitutional rights, nevertheless, if in its present form it is regarded as an attempt to do so, it would to the extent of such an attempt be unconstitutional; if, on the other hand, the warden and board be regarded as officers with only administrative powers, the validity of the licenses issued to Farrell is to be determined by the results wrought by them, and when so determined they are ascertained to be ineffective; and therefore in either event the plaintiffs are entitled to a decree preventing the construction of the traps.

Farrell drove three piling at each of the places designated by the three licenses, and plaintiffs allege that they petitioned the master fish warden and board to remove and confiscate them pursuant to Section 2 of Chapter 128, Laws 1913. The defendants argue that when the plaintiffs petitioned for the removal and confiscation of the piling on the authority of Chapter 128, they precluded themselves from afterwards questioning the validity of the statute. It is true that the plaintiffs do contend that Chapter 128 is unconstitutional to whatever extent it may be said to attempt to confer upon the warden and board authority to render a final adjudication of fishing rights or to grant exclusive rights to fish; but it is also true that the plaintiffs never at any time contended that Section 2 was invalid or that the whole chapter was unconstitutional for all purposes, although it may be invalid to whatever extent it may attempt to confer power to adjudicate existing rights or to grant exclusive rights.

While Farrell is not entitled to construct the traps or to maintain the piling driven at each of the three places, yet it would not be equitable to command the warden and board to remove and confiscate the nine piling under the provisions of Section 2 of Chapter 128, Laws 1913, when the piling were driven pursuant to licenses which were presumably issued in good faith; and therefore the mandatory injunction prayed for by the plaintiffs is denied. The acts of the warden and board complained of by the plaintiffs were fully consummated before this suit was begun; it does not appear that the warden and board purpose to issue licenses in the future for traps along the island; and therefore the complaint and suit are dismissed without costs as to the warden and members of the board; but the licenses issued to Farrell are annulled and as to him the decree is affirmed. Modified.