Barker v. State Fish Com'n

• Court: Washington Supreme Court
• Writing for the Court: PARKER, J.
• Citation: Barker v. State Fish Com'n, 152 P. 537, 88 Wash. 73 (Wash. 1915)
• Decision Date: 10 November 1915
• Docket Number: 12795.
• Parties: BARKER et al. v. STATE FISH COMMISSION.

152 P. 537

88 Wash. 73

BARKER et al. v. STATE FISH COMMISSION.

No. 12795.

Supreme Court of Washington

November 10, 1915

Department 2. Appeal from Superior Court, Thurston County; John R Mitchell, Judge.

Action by John F. Barker and others against the State Fish Commission. From a judgment of dismissal, plaintiffs appeal. Affirmed.

Vince H. Taben, of Seattle, for appellants.

W. V Tanner, Atty. Gen., and Edward W. Allen, Asst. Atty. Gen for respondent.

PARKER J.

This action was commenced in the superior court for Thurston county by John F. Barker and others in behalf of themselves and all others similarly situated, against Ernest Lister Governor, Edward Meath, treasurer, and L. H. Darwin, state fish commissioner, constituting the state fish commission, seeking to enjoin them from commencing any action or proceeding looking to the arrest or prosecution of the plaintiffs or others similarly situated for violations of the provisions of the fisheries code enacted by the Legislature of 1915. The plaintiffs' complaint was demurred to on the ground, among others, that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the superior court, and, the plaintiffs electing to stand on their complaint and not plead further, judgment of dismissal was entered against them, from which they have appealed.

The claimed rights of appellants to the relief prayed for is by their counsel rested upon the ground of the unconstitutionalty of the fisheries code of 1915. It is contended that the restrictions and regulations of this law, if enforced, would deny to appellants privileges and immunities which it grants to others, in violation of article 1, § 12, of the state Constitution, and would also deny to them the equal protection of the laws, in violation of the fourteenth amendment to the Constitution of the United States.

The allegations of the complaint, so far as necessary to here notice them, are as follows:

'That these plaintiffs and all others similarly situated and for whom this action is brought are fishermen and derive their income from their daily prosecution of their occupation as fishermen in the waters of Puget Sound and other tide and fresh waters of the state of Washington; that they have invested in boats, seines, nets, anchors, and other equipment and paraphernalia used in their said business upwards of the sum of $75,000, and each and all of the said plaintiffs are directly and financially interested in the welfare and preservation of said business and industry; that the value of the personal property and equipment possessed and used by the average gill net fisherman in the conduct of his fishing operations is at least the sum of $1,200.

'That gill net fishing is conducted and carried on in all tide and nontide waters of the state of Washington, and is conducted for all practical purposes by means of a net about 350 fathoms in length and 100 meshes of 3-inch stretch measure in depth; that it is necessary, in order that said net may be used efficiently, that it shall lie open, without tension, the meshes being spread open, and the net spreading in the water transverse to the current or tide in such manner that it automatically entraps the fish in the meshes of the net by means of the gills of the fish; that a purse net or seine is about 1800 feet in length, and varies in depth from 18 to 26 fathoms, and is operated in such manner by about eight men or more and with engine power, in addition, so as to entrap the fish by pulling in the purse lines, thereby taking in from 600 to 800 marketable fish, and sometimes 18,000 or 20,000 fish, in one haul.

'That the necessary investment of a gill net fisherman is usually confined to one individual, and is operated by one or two men, and if said business is unreasonably and oppressively restricted or prohibited, it would entirely confiscate the property of the fisherman invested in his tackle and apparel and accoutrements, to his individual damage in the sum of $1,200 or more; that it is necessary that they follow their calling and vocation each day in the year, and it is only possible to successfully operate the same during the hours after sunset and before daylight; that in order to operate a gill net feasibly or for any practical purpose it would require a working line at least 400 fathoms in length, whereas, under the provisions of said act of March 6, 1915, the gill net fisherman is only permitted to use a working line limited to 500 feet in length, which is insufficient and impossible of any practical use or utility in the waters of Puget Sound.

'That under the provisions of said act above mentioned, and by reason of the limitation of the dimension of the working tackle, the provisions thereof are discriminatory in favor of the purse net as against the gill net and to the injury and extermination of the gill net fishermen, and for the protection and benefit of the purse net fishermen, and that the same is arbitrary and unfounded upon any consideration of public health or public safety or upon any necessity, inherent or otherwise, but simply as aforesaid, for the discrimination against the gill net fishermen.'

Other allegations follow these, invoking the protection of the state and federal constitutional guaranties above noticed.

The discriminating provisions of the law which are particularly called to our attention and claimed by counsel for appellants to withhold from them the equal protection of the laws in violation of the constitutional guaranties invoked are found in section 36 of the law reading as follows:

'It shall be unlawful to use any pound net, trap, fish wheel or other fixed appliance for catching salmon or other food fish with meshes under three inches, stretch measure. It shall be unlawful to operate in any of the waters of Puget Sound any purse seine, drag seine or other like seine or net of a greater length than five hundred feet with meshes less than two and one-half inches stretch measure, during the year 1915, and after January first, 1916, with meshes less than three inches stretch measure. It shall also be unlawful to operate in any of the said waters any gill net of a greater length than five hundred feet with meshes less than five inches stretch measure.' Section 36, Laws 1915, p. 80.

The argument of counsel for appellants is, in substance, that since purse and drag seines of over 500 feet in length with meshes of 'three inches stretch measure' may be used, while gill nets of over 500 feet in length shall have meshes of 'five inches stretch measure,' there is thereby prescribed a discrimination in favor of those engaged in purse and drag seine fishing and against those engaged in gill net fishing, and that therefore purse and drag seine fishermen are granted privileges and immunities which are withheld from appellants, who are gill net fishermen. It seems plain to us that this is not a discrimination between or a classification of persons, but only a discrimination as to appliances which may be used, and that as to each class of such appliances every person may use them under exactly the same conditions and restrictions. There is no suggestion in the law that gill nets may not be used as the law precribes by all persons, or that purse and drag seines may not be used as the law prescribes by all persons. There is plainly no discrimination touching any characteristic or quality attaching to the person of appellants or any other person.

It has become the settled law of this state, in harmony with the rule prevailing in other states, that the classification of territory in game and fish laws preventing hunting or fishing in a portion of the state and permitting it elsewhere in the state is not a discrimination between or a classification of persons in violation of the state or federal constitutional guaranties here invoked. Hayes v. Washington, 2 Wash T. 286, 5 P. 927; State v. Tice, 69 Wash. 403, 125 P. 168, 41 L. R. A. (N. S.) 469; Cawsey v....