Union Fishermen's Co. v. Shoemaker

193 P. 476, 98 Or. 659, 1920 Ore. LEXIS 106

• Court: Oregon Supreme Court
• Decided: November 16, 1920
• Status: Published

Opinions

HARRIS, J.

The questions to be decided can be better considered and discussed if we first give an account of the fish legislation, affecting the Columbia River, enacted in the States of Oregon and Washington in the years 1915,1917, and 1919. In 1915, conference committees were appointed by the legislative assemblies of the two states, with the view of agreeing upon fish legislation concerning the Columbia River and other waters. The conference committees met and discussed proposed legislation, and as a result the legislative assembly of Oregon passed a “new Fish Code” providing for the regulation of the taking of salmon from the waters of the Columbia Eiver, over which the States of Oregon and Washington have concurrent jurisdiction, and from other waters within the boundaries of the State of Oregon. This “new Fish Code” is also known as Chapter 188, Laws of 1915; and Section 20, the material section here of the chapter, reads as follows:

“Should Congress, by virtue of the' authority vested in it under Section 10, Article One of the Constitution of the United States, providing for compacts and agreements between states, ratify the recommendations of the conference committees of the States of Oregon and Washington, appointed to agree on legislation necessary for the regulation, preservation and protection of fish in the waters of the Columbia Eiver, over which said states have concurrent jurisdiction, and other waters within either state, which would be affected by said concurrent interest, recommendation being as follows:

“ ‘We further recommend that a resolution be passed by the legislatures of Washington and Oregon, whereby the ratification by Congress of the laws of the States of Oregon and Washington shall act as a treaty between said states, subject to modification only by joint agreement by said states’; and said recommendation having been approved by resolution adopting the report of the conference committee, then, and in that event, there shall exist between the States of Oregon and Washington a definite compact and agreement, the purport of which shall be substantially as follows:

“All laws and regulations now existing, or which may be necessary for regulating, protecting or preserving fish in the waters of the Columbia Eiver, over which the States of Oregon and Washington have concurrent jurisdiction, or any other waters within either of said states, which would affect said concurrent jurisdiction, shall be made, changed, altered and amended in whole or in part, only with the mutual consent and approbation of both states.”

In 1915, the legislative assembly of Washington enacted a “Fisheries Code.” This Code appears as Chapter 31, Laws of Washington 1915. Section 116, the material section here, is as follows:

“Should Congress, by virtue of the authority vested in it under Section 10, Article I, of the Constitution of the United States, providing for compacts and agreements between states, ratify the recommendations of the conference committees of the States of Washington and Oregon, appointed to agree on legislation necessary for the regulation, preservation and protection of fish in the waters of the Columbia River, or its tributaries, over which said states 'have concurrent jurisdiction, or which would be affected by said concurrent jurisdiction, said recommendation being as follows: ‘We further recommend that a resolution be passed by the legislatures of Washington and Oregon, whereby the ratification by Congress of the laws of the States of Washington and Oregon shall act as a treaty between said states, subject to modification only by joint agreement by said states’; and said recommendation having been approved by resolution adopting the report of the conference committee, then, and in that event, there shall exist between the States of Washington and Oregon a definite compact and agreement, the purport of which shall be substantially as follows:

“All laws and regulations now existing or which may be necessary for regulating, protecting or preserving fish in the waters of the Columbia River, or its tributaries, over which the States of Washington and Oregon have concurrent jurisdiction, or which would be affected by said concurrent jurisdiction, shall be made, changed, altered and amended in whole or in part, only with the mutual consent and approbation of both states.”

The legislative assembly of each state adopted a resolution in 1915 requesting Congress to consent to and ratify the agreement made by Oregon and "Washington, so as to comply with the requirements of Article I, Section 10, of the Constitution of the United States: S. C. E. No. 5, Laws of Oregon 1915, p. 618. Congress having failed to act upon the resolution submitted in 1915, the legislative assemblies of the two states in 1917 again adopted resolutions, requesting Congress to give its consent to the agreement made by the two states in 1915. Congress finally heeded the request by passing . the act of April 8, 1918, consenting to the agreement: 40 Stat. 515. The act of Congress is as follows:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Congress of the United States of America hereby consents to and ratifies the compact and agreement entered into between the States of Oregon and Washington relative to regulating, protecting, and preserving fish in the boundary waters of the Columbia Eiver and other waters, which compact and agreement is contained in section twenty of chapter one hundred and eighty-eight of the General Laws of Oregon for nineteen hundred and fifteen, and section one hundred and sixteen, chapter thirty-one, of the Session Laws of Washington for nineteen hundred and fifteen, and is as follows:

“ ‘All laws and regulations now existing, or which may be necessary for regulating, protecting, or preserving fish in the waters of the Columbia Eiver, over which the States of Oregon and Washington have concurrent jurisdiction, or any other waters within either of said States, which would affect said concurrent jurisdiction, shall be made, changed, altered, and amended in whole or in part, only with the mutual consent and approbation of both States.’ -

"Nothing herein contained shall be construed to affect the right of the United States to regulate commerce, or the jurisdiction of the United States over navigable waters.”

By the terms of Section 18, Chapter 188, Laws of Oregon 1915, it was made unlawful for any person to purchase any food fish unlawfully taken from any of the waters of this state, or from any of the waters over which the State of Oregon had concurrent jurisdiction during any closed season prescribed by law. In 1917, Section 18 of Chapter 188, Laws of Oregon 1915, was amended so as to read as follows:

"It shall be unlawful for any person to purchase, or offer for sale, any food fish of any variety unlawfully taken from any of the’waters of this state, or from any of the waters over which the State of Oregon has concurrent jurisdiction, or to have in their possession or to purchase or offer for sale, any salmon fish' of any variety taken beyond the three-mile line outside of the Columbia Biver, during any closed season prescribed by law; and any person who purchases or offers for sale any such fish, during any such period, sjialL be guilty of a violation of this act”: Section 3, Chapter 219, Laws 1917. .

By the terms of Section 65, Chapter-31, Laws of Washington 1915, it was unlawful to purchase any food fish unlawfully taken from the waters of Washington during any of the closed seasons prescribed by that act. In 1917 the legislative assembly of Washington amended Section 65 of Chapter 31, Laws of 1915, so as to make it read as follows:

“It shall be unlawful for any person, firm or corporation to purchase, handle, deal in or have in his possession except for the sole use of himself and family any food fish of any variety which were taken from the waters of this state during any of the closed seasons .prescribed in this act, and any person who purchases, handles, deals in or has in his possession any such fish during such periods, except for the sole use of himself and family, shall be guilty of a misdemeanor. And it shall be unlawful for any person, firm, or corporation to purchase, handle, deal in, or have in his possession, except for the sole use of himself and family any salmon fish of any variety which were taken beyond the three mile limit outside of the Columbia River, during any of the closed seasons prescribed in this act: Provided, ho to ever, That this provision shall not apply to salmon taken beyond the three mile limit outside the Straits of Juan de Fuca”: Section 16, Chapter 169, Laws of "Washington 1917.

On November 20, 1918, Section 16 of Chapter. 169, Laws of Washington 1917, was held to be unconstitutional by the Supreme Court of Washington: State v. Belknap, 104 Wash. 227 (176 Pac. 5, 182 Pac. 570).

In 1919, the legislative assembly of Washington did not enact any statute which is any wise material here; but in Oregon the legislature, which convened in that year, enacted Chapter 367. In addition to Section 5, already quoted, there is another material section to be found in Chapter 367, Laws of Oregon 1919, for Section 10 of that act expressly repeals Section 18 of Chapter 188, Laws of Oregon 1915, as amended by Section 3 of Chapter 219, Laws of Oregon 1917.

The plaintiffs say that Section 5 of Chapter 367, Laws of Oregon 1919, is ineffective because: (1) It is not a valid exercise of the police power of the state; (2) it is discriminatory and not general in its operation, and is therefore violative of Article I, Section 20, of the state Constitution and of Article XIV, Section 1, of the federal Constitution; (3) it infringes upon the foreign and interstate commerce clause of Article I, Section 8, of the federal Constitution; and (4) it impairs the obligations of the contract embodied in the compact between Oregon and Washington, and hence is violative of Article I, Section 10, of the Constitution of the United States, and of Article I, Section 21, of the state Constitution.

The litigants do not agree' upon the construction to be placed on the words “beyond the three-mile line outside of the Columbia River” found in Section 5, Chapter 367, Laws of 1919. The defendant argues that the quoted language means “the space where fishermen are accustomed to fish for salmon, using landing places along the Columbia River or at the mouth of the river as their base.” The plaintiffs interpret. the language of Section 5 of the statute to cover that space which is west of the three-mile line and between the north and south boundary lines of the Columbia River projected west from and beyond the three-mile line. The construction given by the plaintiffs does not confine the operation of the staU ute to such narrow limits as to make it absurd and unreasonable or as to defeat the purpose of the enactment, for when we are told that it is seven miles from the south headland to the north headland at the mouth of the river, we at once understand that the statute refers to a large area. The words “beyond the three-mile line,” when considered as standing alone, are broad, comprehensive, and unlimited; for any point, whether off the Oregon or the Washington or the California or the British Columbia or the Alaskan coast, would be beyond the three-mile line, if more than three miles from the shore; and hence, when we find the unrestricted words “beyond the three-mile line,” immediately followed by the words “outside of the Columbia River,’.’ we at once know that the latter words are words of limitation, because otherwise they would be utterly inoperative and useless.

1-3. One of the accepted rules of statutory construction requires courts to so construe a statute as to give effect to every clause, if possible: Henry v. Yamhill Co., 37 Or. 562, 564 (62 Pac. 375); In re Willow Creek, 74 Or. 592, 614 (144 Pac. 505, 146 Pac. 475); 25 R. C. L. 1004. In construing a statute, ascertainment of the intention of the legislature is the “consummation devoutly to be wished”; and, if the words of the statute are not of themselves sufficiently explicit to manifest the intention of the lawmakers,' the intention is then to be ascertained by considering the context, the subject matter, the necessity for the law, and the circumstances under which it was enacted, the mischief sought to be remedied, and the object to be attained; 25 R. C. L. 1012; 36 Cyc. 110. If, however, the intention of the legislature cannot be discovered, the court should give the statute a reasonable construction consistent with the general principles of law: 36 Cyc. 1108.

The Columbia Eiver salmon has acquired a worldwide reputation for excellence as a food fish. The business of catching, canning, and packing salmon has developed into one of the leading industries of this commonwealth, and the value of the annual pack amounts to millions of dollars. Although there are canneries located on the Eogue, the Umpqua, and the Siletz Eivers, and other coastal streams in this state, the major portion of the annual salmon' pack comes from the Columbia Eiver. The habits of salmon are such that when they “run” from the sea to fresh water for spawning purposes most of them “run” to the waters where they themselves were propagated; and hence, most of the salmon which have been propagated in the Columbia River and its tributaries, when they “run” from the sea, enter the Columbia River, and not some other stream emptying into the sea. In order to protect and preserve this food fish, which furnishes the basis of one of the state’s largest industries, it has been found necessary to close the waters of the Columbia to fishermen during certain periods. The closed season for a given stream is fixed with reference to the habits of the salmon which each year are expected to “run” up that stream. Experience and observation have shown that the salmon, before beginning to “run” up the Columbia River, congregate in large numbers off the mouth of the river, and the “run” of salmon up the river continues for a considerable period. The closed season is so timed and fixed as to enable a portion of the “run” to ascend the river without molestation and thus furnish the necessary supply for both natural and artificial .propagation. There are, of course, closed seasons prescribed for each of the Oregon coastal streams in which salmon are found. However, the closed season for a given stream is fixed with reference to the habits of salmon found in that stream, and not with reference to the habits of salmon running up other ■ streams, because the annual “run” in one stream does not coincide in point of time with the “run” in another stream; and the necessary result is that during a given period the Columbia may be open and at the same time one or several of the other coastal streams may be closed to fishermen; or, on the other hand, the Columbia may be closed while one or several of the other streams may be open to fishermen. It is apparent that, because of these differences in the closed seasons prescribed for the different streams, the legislature, when framing and enacting Section 5 of Chapter 367, was legislating with reference to the conditions found in the Columbia Biver. For example, during a portion of the time when the waters of the Columbia are closed, the season is open on the Siuslaw Biver. Now, it is manifest that the legislature did not intend to say that fish caught off the Siuslaw Biver and beyond the three-mile line at a time when the season was open on the Siuslaw, but closed on the Columbia, could not be brought into this state and possessed here.

4. The word “outside” is formed by combining two words, “out” and “side”; and, among other definitions the combined word is defined thus: “Outside of, on or to the exterior of; without; outward from”; Cent. Diet. If a line be projected west from the north headland of the Columbia Biver and another line be similarly projected from the south headland to and across the three-mile line and if that part of the three-mile line which is between the two projected lines is taken as the side of the Columbia Biver, then the word “outside,” when given a natural and not an artificial or strained signification, means the waters on the exterior of such side. The construction placed upon the statute by the plaintiffs, not only gives to the word “outside” a natural meaning, but it possesses the additional merit of being definite and certain. Moreover, this construction of the statute does not lead to absurd results; but, on the other hand, it enables the state, through its proper officers, to effectuate the purposes of the .statute by dealing with conditions as they actually exist.

5. When the state through its legislature enacted the statute now in controversy, it did so upon the assumption that the enactment was an exercise of the police power. Because of the wide range over which this power may he exercised, it is difficult, if not impossible, to mark out in advance the exact limits of its reach; and therefore it cannot be accurately defined although it may be understandingly described. A concise statement, which emphasizes the thought that the field within which the police power may be exerted is very broad, is found in State v. Redmon, 134 Wis. 89, 105 (114 N. W. 137, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408, 14 L. R. A. (N. S.) 229), where it is said:

“It is the power to make all laws which in contemplation of the Constitution promote the public welfare.”

The police power embraces the whole sum of inherent sovereign power which the state possesses, and, within constitutional limitations, may exercise for the promotion of the order, safety, health, morals, and general welfare of society: 12 C. J. 904; Stettler v. O’Hara, 69 Or. 519, 531 (139 Pac. 743, Ann. Cas. 1916A, 217, L. R. A. 1917C, 944); Mill Creek Coal & Coke Co. v. Public Service Commission (W. Va.), 100 S. E. 557 (7 A. L. R. 1081).

6. The preservation of fish and game has always been treated as being within the proper domain of the police power; and, consequently, when- the lawmakers passed the act of 1919, they legislated concerning a subject which is clearly within the embrace of the police power: Lawton v. Steele, 152 U. S. 133 (38 L. Ed. 385, 14 Sup. Ct. Rep. 449); Geer v. Connecticut, 161 U. S. 519 (40 L. Ed. 793, 16 Sup. Ct. Rep. 600); Silz v. Hesterberg, 211 U. S. 31 (53 L. Ed. 75, 129 Sup. Ct. Rep. 10); State v. Schuman, 36 Or. 16, 25 (58 Pac. 661, 78 Am. St. Rep. 754, 47 L. R. A. 153).

7-9. The legislature, it is true, is not the final judge of the limitations of the police power, and, since the legislative action must be reasonably necessary for the public benefit, the validity of all police regulations depends upon whether they can ultimately pass the judicial test of reasonableness; and yet, it is also true that it is the legislative function primarily to determine the necessity or expediency of measures adopted. When, however, the courts are called upon to apply the judicial test of reasonableness, they will accord to the legislature a large discretion in determining, not only what the interests of the public require, but also what measures are necessary for the protection of such interests: Lawton v. Steele, 152 U. S. 133 (38 L. Ed. 385, 13 Sup. Ct. Rep. 499); Silz v. Hesterberg, 211 U. S. 31 (53 L. Ed. 75, 29 Sup. Ct. Rep. 10); Ex parte Mon Luck, 29 Or. 421, 426 (44 Pac. 693, 54 Am. St. Rep. 804, 32 L. R. A. 738); Lorntsen v. Union Fisherman’s Co., 71 Or. 540, 547 (143 Pac. 621); State v. Redmon, 134 Wis. 89 (114 N. W. 137, 126 Am. St. Rep. 1003, 15 Ann. Cas. 409, 14 L. R. A. (N. S.) 229); 12 C. J. 933. Moreover, when applying the test of judicial reasonableness, the presumption is in favor of the reasonableness and validity of the regulation: 12 C. J. 934.

10. The plaintiffs insist that Section 5 of the statute is an unreasonable police regulation, because it is unusual, fails to accomplish its avowed purpose, and is unduly oppressive upon individuals “and the financial resources of the great fishing industry.” That Section 5 is unusual may be conceded; but it must also be conceded that the conditions attempted to be met are unusual. It is not unusual- to find statutes prescribing closed seasons; nor is it unusual to find the law so framed as to make it unlawful to sell, purchase, or possess game or fish during the closed season, even if originally taken and brought from without the state which enacted the law. As already pointed out, the salmon “runs” do not occur in all the streams at the same time, and consequently it is impracticable to prescribe the same closed season for all the streams. When legislation is enacted for the protection of fish in the Columbia it must, in order to accomplish its purpose, be framed.with reference to conditions found to exist in the waters of that river, and it is manifest that Section 5 was in fact framed with reference to the conditions existing there; and hence, the provisions of Section 5 are unusual only to the extent that the conditions which called for the adoption of the measure were and are unusual.

11. Of course the State of Oregon has no jurisdiction over the waters of the Pacific Ocean beyond the three-mile line; nor did the state by the enactment of the statute in question attempt to make fishing beyond the three-mile limit unlawful. The statute was adopted in order to make effective the prohibition against taking fish during the closed season from, waters over which the state may rightfully exercise jurisdiction, and that the state has authority to do this is settled beyond controversy: Silz v. Hesterberg, 211 U. S. 31 (53 L. Ed. 75, 29 Sup. Ct. Rep. 10, see, also, Rose’s U. S. Notes).

12. Since there j.s no statute like Section 5 in force in the State of Washington, canneries operated on the Washington side of the Columbia River can, without hindrance, purchase and pack, during the closed season, salmon caught beyond the three-mile line outside of the Columbia River, with the result that Washington canneries are permitted, during the closed season, to pack the same fish which the Oregon canneries are prohibited from packing during that time. The conditions permitted to exist on the Washington side of the river do not defeat the object sought to be accomplished by the Oregon statute, although they do interfere with and probably prevent the full and complete attainment of the object sought to be accomplished by the Oregon statute.’ Absence of like legislation in the State of Washington affects only the degree of protection, but it does not entirely prevent protection. It may be true that the Columbia River salmon would be better protected if the State of Washington had enacted and now enforced legislation like Section 5 of our statute; and, indeed, if we correctly understood the argument of counsel for the plaintiffs at the hearing, the plaintiffs themselves say that they would be pleased to see British Columbia and the States of Washington, Oregon, and California pass legislation similar to Section 5, because such legislation, if in force in British Columbia and in the three named states, would undoubtedly be helpful in preserving and protecting salmon as a food fish. The contention of the plaintiffs that Section 5 is an unreasonable exercise of the police power cannot be sustained.

13. The argument that Section 5 is discriminatory and not general in its application, and therefore unconstitutional, is answered adversely to the position taken by the plaintiffs in the opinions rendered in State v. Savage, 96 Or. 53 (184 Pac. 567, 189 Pac. 427), and State v. Blanchard, 96 Or. 79 (189 Pac. 421). See, also, 11 R. C. L. 1045.

14. The holding in Silz v. Hesterberg, 211 U. S. 31 (53 L. Ed. 75, 29 Sup. Ct. Rep. 10, see, also, Rose's U. S. Notes), is authority for the conclusion that Section 5 of onr statute does not contravene the foreign and interstate commerce clause of the federal Constitution: See, also, State v. Schuman, 36 Or. 16 (58 Pac. 661, 78 Am. St. Rep. 754, 47 L. R. A. 153); Ex parte Maier, 103 Cal. 476 (37 Pac. 402, 42 Am. St. Rep. 129); Ex parte Fritz, 86 Miss. 210 (38 South. 722, 109 Am. St. Rep. 700); 5 R. C. L. 762.

The next contention urged by the plaintiffs is that the compact between the States of Washington and Oregon is a contract, and that it is therefore protected by the state and federal Constitutions against legislation impairing its obligations: Green v. Biddle, 8 Wheat. 1 (5 L. Ed. 547); Poole v. Fleeger, 11 Pet. 185 (9 L. Ed. 680); Virginia v. Tennessee, 148 U. S. 503 (37 L. Ed. 537, 12 Sup. Ct. Rep. 728); Wharton v. Wise, 153 U. S. 155 (38 L. Ed. 669, 14 Sup. Ct. Rep. 783, see, also, Rose’s U. S. Notes).

15. For the purposes of the instant case we shall assume, without attempting to decide, that the compact entered into between Oregon and Washington is binding upon both parties to the extent that one cannot withdraw without the1 consent of the other, and that therefore one state cannot, without the “consent and approbation” of the other state, enact any law which would conflict with the terms of the compact. Again directing attention to the compact, we observe 'that the. two states have expressly limited their agreement to laws and regulations “which would affect said concurrent jurisdiction.” As ruled by the United States Circuit Court of Appeals for the Ninth Circuit, in Olin v. Kitzmiller, 268 Fed. 348, recently decided: “It is only as to its common right with the adjoining state to take fish from those waters that its right is limited by the compact. ’ ’ This state has not attempted to change the closed season. The prohibition of the Oregon statute is operative only during the periods which both states have fixed as the closed seasons on the Columbia. The inhibition of Section 5 merely aids in keeping such seasons closed. Section 5 does not “affect” the “concurrent jurisdiction” of the two states, and, indeed, it recognizes, rather than ignores, the jurisdiction which the two states have concurrently exercised.

Our conclusion is that the ruling made by the Circuit Court was correct; and hence the decree appealed from is affirmed. Aeeirmed.

MoBride, C. J., and Burnett and Johns, JJ., concur.

Denied January 25, 1921.