Frach v. Schoettler

• Decision Date: 10 March 1955
• Docket Number: No. 32952,32952
• Citation: 46 Wn.2d 281,280 P.2d 1038
• Parties: Clarence FRACH, J. C. George, Fred Yaeger, David M. Hume et al., Appellants, v. Robert J. SCHOETTLER, as Director of the Department of Fisheries of the State of Washington, and Charles R. Maybury, as Treasurer of the State of Washington, Respondents.
• Court: Washington Supreme Court

Page 281

46 Wn.2d 281

280 P.2d 1038

Clarence FRACH, J. C. George, Fred Yaeger, David M. Hume et

al., Appellants, v. Robert J. SCHOETTLER, as Director of the Department of

Fisheries of the State of Washington, and Charles

R. Maybury, as Treasurer of the State of

Washington, Respondents.

No. 32952.

Supreme Court of Washington, En Banc.

March 10, 1955.

Rehearing Denied April 20, 1955.

Fred M. Bond, South Bend, Troy & Richardson, Olympia, for appellants.

Don Eastvold, Atty. Gen., Joseph T. Mijich, Asst. Atty. Gen., Thomas A. Swayze, Jr., Tacoma, for respondents.

OTT, Justice.

This action was brought by one hundred thirty-two fishermen against the director of the department of fisheries of the state of Washington and the state treasurer, for the purpose of testing the validity of chapter 147, Laws of 1953 [cf. RCW (Sup.1953) 75.18], in so far as this act affects the rights of the plaintiffs to catch salmon exclusively beyond the territorial waters of the state, and to make a sale and disposal of them within the state boundaries during certain seasons.

Plaintiffs sought an injunction against enforcement of this act upon the ground that it is unconstitutional and, therefore, void, and that much of the authority granted to the director constitutes an unlawful delegation of legislative power. By an alternative cause of action, plaintiffs sought a declaratory judgment decreeing and adjudicating the statute void.

A demurrer to the second amended complaint of the plaintiffs was sustained by the trial court. Plaintiffs declining to plead further, the action was dismissed with prejudice. The appeal to this court was taken from the judgment of dismissal.

Plaintiffs (hereinafter referred to as appellants) are residents of this state, and the owners of commercial fishing vessels, fishing exclusively three miles beyond the shores of the state of Washington, which is outside the territorial limits of the state. Although the appellants fish commercially for other fish, in this action they are concerned only with the regulatory provisions of the act in question, as it applies to their salmon fishing activities. After the salmon are caught and cleaned, they are brought into the state and sold to canneries. By § 1 of the act, the legislature determined that it is impossible to distinguish the salmon that are caught outside the state boundaries from those caught within the territorial waters of Washington.

The questioned sections of the act provide generally as follows:

Section 1 declares the state legislative policy concerning the salmon industry.

Section 2 creates two fishery districts, district No. 1, which includes the Straits of Juan de Fuca and the waters of the Pacific ocean over which the state has jurisdiction, exclusive of bays, inlets, canals, coves, sounds, and estuaries, and district No. 2, which includes all waters over which the state has jurisdiction, excepting therefrom district No. 1.

Sections 3 and 4 forbid commercial fishing for silver salmon in the waters of district No. 1 between November 1st and June 15th, and for chinook salmon between November 1st and March 14th.

Section 5 forbids possession or transportation through the waters of district No. 1 of silver salmon taken from those waters or from the Pacific ocean during the period from November 1st to June 15th.

Section 6 makes the same provision relative to chinook salmon for the period from November 1st to March 14th.

Sections 7 and 8 make it unlawful for any processor, canner, and so forth, to have in his possession silver or chinook salmon taken from the waters of district No. 1 or the Pacific ocean during the closed seasons specified. Section 8 also authorizes the director, upon due notice and hearing, to vary the opening and closing dates of the fishing seasons.

Section 9 provides that anyone operating a commercial fishing vessel used for catching chinook or silver salmon in offshore waters, and transporting them in and through the waters of the state for delivery to any place or port in the state, shall obtain a permit from the director of fisheries. The fee for this permit is ten dollars for the vessel and ten dollars for each member of its crew. The section further empowers the director to revoke permits for violation of regulations.

On or about May 31, 1953, the director adopted certain amendments to General Order No. 256 of the Orders of the Director of Fisheries. These amendments extended the open season in certain areas within the state for those using various types of fishing gear.

It is a well established rule that one who attacks the constitutionality of a law, clearly has the burden of proof. Shea v. Olson, 1936, 185 Wash. 143, 151, 53 P.2d 615, 111 A.L.R. 998, and cases cited; Sears v. Western Thrift Stores, 1941, 10 Wash.2d 372, 116 P.2d 756; Martin v. Tollefson, 1945, 24 Wash.2d 211, 163 P.2d 594; Gruen v. State Tax Commission, 1949, 35 Wash.2d 1, 211 P.2d 651; Miller v. Howe Sound Min. Co., D.C., 77 F.Supp. 540; 11 Am.Jur. 776, Constitutional Law, § 128.

Every law is presumed to be in the interest of the public welfare. City of Tacoma v. Fox, 1930, 158 Wash. 325, 290 P. 1010. See, also, People of State of New York ex rel. Silz v. Hesterberg, 1908, 211 U.S. 31, 29 S.Ct. 10, 53 L.Ed. 75. In the instant case, § 1 of the act declares the public policy of this state. This court cannot dispute this legislative finding, or declaration of policy. State ex rel. Govan v. Clausen, 1919, 108 Wash. 133, 183 P. 115; State v. Miller, 1928, 149 Wash. 545, 271 P. 826; State ex rel. Gray v. Martin, 1948, 29 Wash.2d 799, 804, 189 P.2d 637, and cases cited; State ex rel. Pennock v. Coe, 1953, 42 Wash.2d 569, 573, 257 P.2d 190, and cases cited.

With these fundamental principles in mind, we must next determine whether the exercise of the power delegated to the director by the act is within the police power reserved to a sovereign state.

'It is well established that, by reason of the state's control over fish within its limits, it is within the police power of the state, subject to constitutional restrictions, to impose by legislative enactment such restrictions and limitations on the catching of fish as may be reasonably necessary for the protection and regulation of the public's rights therein, even to the extent of restricting the use of, or right of property in, the fish after they are taken, and of obliging all citizens to conform to such regulations by inflicting penalties for the violation of them.' 36 C.J.S., § 26, Fish, p. 857.

This court, in defining police power, stated:

'However difficult it may be to give a precise or satisfactory definition of 'police power,' there is no doubt that the state, in the exercise of such power, may prescribe laws tending to promote the health, peace, morals, education, good order, and welfare of the people. * * * the only limitation upon it [police power] is that it must reasonably tend to correct some evil or promote some interest of the state, and not violate any direct or positive mandate of the constitution.' Shea v. Olson, supra, 185 Wash. at page 153, 53 P.2d at page 619.

See, also, State v. Walter Bowen & Co., 1915, 86 Wash. 23, 149 P. 330; Parrott & Co. v. Benson, 1921, 114 Wash. 117, 194 P. 986; State v. Sears, 1940, 4 Wash.2d 200, 205, 103 P.2d 337, and cases cited; Lane v. Department of Labor & Industries, 1944, 21 Wash.2d 420, 427, 151 P.2d 440, and cases cited; State v. Dexter, 1949, 32 Wash.2d 551, 554, 202 P.2d 906, 13 A.L.R.2d 1081, and cases cited.

We conclude that regulation and conservation of our salmon industry, as defined in the questioned act, promote the 'good order and welfare of the people,' and hence are clearly within the police power of the state.

We turn now to the consideration of appellants' assignments of error.

Appellants contend that the trial court erred in allowing the director to enforce § 9 of the act. This section requires the fishermen to obtain a permit for themselves and for the boat they operate, and to pay a fee therefor. It is contended that this part of the act constitutes class legislation and attempts to delegate power to the director of fisheries in violation of Art. I, §§ 8 and 10, of the United States constitution, and Art. I, §§ 3, 7, and 12, of the constitution of the state of Washington.

We cannot agree that this act constitutes class legislation or is discriminatory. All commercial fishermen, catching and transporting salmon in Washington waters, are required to obtain a permit and pay the same fee. See § 9 of the questioned act (RCW 75.18.080), and RCW 75.28.080, 75.28.100. There is no distinction as to types of equipment used or where the user thereof may be fishing. All who come within the provisions of the statutes are qually affected thereby.

In State v. Hennessy, 1921, 114 Wash. 351, 361, 195 P. 211, 215, we said '* * * The Legislature has power to pass all needful police regulations, and so long as such regulations bear with equal weight upon all in like situation or of the same class, they are upheld by the courts.'

Does the act unlawfully delegate legislative power to the director? The general question has been considered by this court in the following cases: Vail v. Seaborg, 1922, 120 Wash. 126, 207 P. 15; McMillan v. Sims, 1925, 132 Wash. 265, 231 P. 943; State v. Nelson, 1927, 146 Wash. 17, 261 P. 796; State v. Miles, 1940, 5 Wash.2d 322, 105 P.2d 51; Senior Citizens League v. Department of Social Security, 1951, 38 Wash.2d 142, 153, 228 P.2d 478, and cases cited.

These cases recognize the distinction between the power to legislate and the power to administer. The delegated authority is simply ministerial. In Vail v. Seaborg, supra, which declared lawful a similar delegation of power to the director of fisheries, we said, in 120 Wash. page 130, 207 P. at page 16:

'The recognized distinction in matters of this kind, however, is between power to legislate and the power to administer. * * *

'The great increase...