Alsos v. Kendall

• Decision Date: 17 June 1924
• Citation: 111 Or. 359,227 P. 286
• Parties: ALSOS v. KENDALL ET AL.
• Court: Oregon Supreme Court

227 P. 286

111 Or. 359

ALSOS v. KENDALL ET AL.

Supreme Court of Oregon

June 17, 1924

In Banc.

Appeal from Circuit Court, Marion County; Geo. G. Bingham, Judge.

Submission of controversy between Eivind Alsos and F. P. Kendall and others comprising the Fish Commission of the State of Oregon and Carl D. Shoemaker, as master fish warden of the state of Oregon. Judgment for defendants, and plaintiff appeals. Affirmed.

W. Lair Thompson, of Portland (McCamant & Thompson of Portland, and G. C. & A. C. Fulton, of Astoria, on the brief), for appellant.

Willis S. Moore, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for respondents.

James W. Mott, of Astoria, amicus curiæ.

RAND J.

Plaintiff a resident alien, skilled in salmon fishing in the Columbia river, applied to the master fish warden for a boat puller's license, pursuant to section 135 of chapter 105, Laws 1921, as amended by section 5 of chapter 295, Laws 1923 which provides for a license fee of $1 for each boat puller engaged in the taking of salmon. His application was denied upon the sole ground that he was not a citizen of the United States.

The Attorney General, appearing on be half of the defendant fish commissioners and master fish warden of the state, contends that under chapter 105, Laws 1921, as amended by chapter 295, Laws 1923, no person, unless he is a citizen of the United States, whether engaged in taking fish for himself or as an employee of another, can be licensed to engage in commercial salmon fishing in the public waters of the state. Plaintiff denies this, and insists that, under a fair construction of the statute, the statute requires only those persons who are actually engaged in commercial salmon fishing for themselves to be licensed, and has no application to persons not fishing for themselves but fishing as employees only of licensed salmon fishermen.

Section 131 of chapter 105, Laws 1921, declares that--

"It shall be unlawful for any person to fish or take for sale or profit any salmon * * * unless such person be a citizen of the United States."

This language, plaintiff contends, evinces the legislative intent to require only those persons engaged in taking for their own use salmon fish from the public waters of the state either to be citizens of the United States or to be licensed, and to exclude from the operation of the act mere employees of licensed salmon fishermen who work for wages and have no interest in the catch. There might be some basis for this contention, if it were not for other provisions of the statute which, we think, clearly show a contrary intent. Section 132 of chapter 105 provides:

"No license for taking or catching salmon * * * shall be issued to any person who is not a citizen of the United States."

Section 133 of the same chapter provides the manner in which the citizenship of an applicant for a license to fish for salmon may be established, while section 121 of that chapter makes it unlawful for any person "to take, catch or fish for, buy, sell, can, pack or otherwise deal in or handle any salmon fish * * * without first obtaining a license therefor." Section 123 of chapter 105, Laws 1921, provides:

"It shall be unlawful for any person or persons to operate or maintain, or leave in a condition to take salmon * * * in any of the waters of this state, at any time hereafter, any * * * gillnet * * * or any device * * * used in catching salmon * * * without first having obtained from the master fish warden a license therefor."

Section 135 of chapter 105, as amended by section 5 of chapter 295, Laws 1923, provides that--

"Licenses * * * shall be issued to any qualified person or corporation by the master fish warden, upon application therefor, and the payment of license fees herein required * * * for each person other than employees engaged in the canning, packing or curing of food or shell fish, and for each person other than employees purchasing or selling salmon."

This section specifically exempts employees engaged in buying, selling, packing, or otherwise dealing in salmon fish from the necessity of being citizens of the United States or of having obtained a license before accepting employment in those occupations, but neither it nor any other section of the statute contains any exemption as to employees engaged in taking, catching, or fishing for salmon. As the statute specifically enumerates the classes of employees who may engage in particular lines of labor connected with the regulated industry without being citizens of the United States, and without having obtained licenses therefor, and has made no such provision for employees engaged in taking, catching, and fishing for salmon, it clearly indicates a legislative intent that employees of the class not so enumerated were not to be exempted from the requirement of citizenship and of being licensed before engaging in the occupations not exempted from the operation of the act. Said section 135, as so amended, also provides that "a separate license shall be required for each * * * gillnet," and also provides that the license fee for each gillnet used in the "taking of salmon * * * shall be $7.50, and for each boat puller license for the taking of salmon * * * one dollar ($1); provided, however, that no gillnet licenses or boat puller licenses shall be issued in the name of or to any applicant unless the said applicant is to be engaged personally in the operation of said gillnet or boat used in the operation thereof."

Construing the statute as a whole, and giving effect to all of its provisions, it clearly appears that the Legislature intended that all persons, whether employer or employee, actually engaged in catching salmon fish, must be licensed, and that no person could be licensed who was not a citizen of the United States. That the work in which plaintiff intended to engage and for which he applied for a license brought him within the operation of the act and required him to be licensed before engaging in such work clearly appears from the following facts.

This cause was tried in the circuit court for Marion county upon an agreed statement of facts filed pursuant to chapter 13, title 2, Or. L. In effect that chapter provides that parties to a question in controversy, which may become the subject of an action at law between them in a court of record, may submit such question for the determination of such court without action by stating in writing a case containing the facts upon which the controversy depends, subscribing the same in person or by their attorneys, and verifying the same by the oaths of the parties to the effect that the controversy is real and the proceeding is taken in good faith to determine the rights of the parties. It provides that--

"The statement shall be filed with the clerk, and from the date of such filing the court shall have jurisdiction of the controversy, as if the same were an action pending, after a special verdict found, and shall proceed to hear and determine the same accordingly."

Another statute (section 152) provides:

"A special verdict is that by which the jury find the facts only, leaving the judgment to the court."

This statement of facts, which, by statute, is given the effect of a special verdict, was subscribed by plaintiff's attorneys and verified by the oath of plaintiff. It recites that the proposed employment for which the plaintiff applied for a license was "to assist the sole owner and licensee as an employee only in the navigation of his gillnet fish boat and in the operation of his gillnet in the waters of the Columbia River in the taking and catching of salmon fish during the salmon fishing season for the year 1924." It also recites in substance that some 15 years ago gillnet fishing boats were operated solely by sails and oars, and that to operate the same it was at all times necessary that two men should be engaged in the operation of the boat and gillnet; that during the time boats were so operated by sails and oars, the sole owner was generally known and designated as "captain," while the assistant was generally known and designated as "boat puller"; that boats are now operated by gasoline engines and propellers, but the sole owner of the vessel still requires at least one person employed thereon to assist him in operating the boat and gillnet, and that this employee so assisting him in the operation of the boat and gillnet is "still generally known as the boat puller."

The statute itself contains no definition of "a boat puller," but the statute is sufficiently comprehensive to make it unlawful for any person to engage in fishing for salmon for commercial purposes in any of the public waters of the state, unless licensed by the master fish warden. The agreed statement of facts not only recites that the work in which plaintiff proposed to engage and for which he applied for a license was to assist in the operation of a boat and gillnet in catching salmon fish but also that an employee of a licensed gillnet fisherman engaged in assisting the owner in the operation of his boat and gillnet in catching salmon fish is still generally known as a boat puller. Obviously the Legislature used the term "boat puller" in the sense that that term is generally understood by persons engaged in the salmon fishing industry. As so used and as so understood, a boat puller, under the statute, cannot be licensed unless he is a citizen of the United States.

Plaintiff's next contention is that, if the act is broad enough to include plaintiff and to require him to be licensed, the requirement of the statute forbidding the licensing of a person because of his alienage is void and of no effect because in contravention of sections 20 and 31 of article 1 of the Constitution of Oregon and of...