McMillan v. Sims

• Decision Date: 05 May 1924
• Docket Number: 18602.
• Citation: 129 Wash. 516,225 P. 240
• Parties: McMILLAN et al. v. SIMS et al.
• Court: Washington Supreme Court

225 P. 240

129 Wash. 516

McMILLAN et al. v. SIMS et al.

No. 18602.

Supreme Court of Washington

May 5, 1924

Department 1.

Appeal from Superior Court, Skagit County; Joiner, Judge.

Action by George N. McMillan, Joe B. McMillan, copartners under the firm name of McMillan Bros., and others, against E. A. Sims and others, as members of the State Fisheries Board, and others. From a judgment of dismissal, plaintiffs appeal. Reversed, with instructions.

C. E Abrams, of Bellingham, and Thomas Smith, of Mt. Vernon, for appellants.

John H Dunbar and E. W. Anderson, both of Olympia and Warren J Gilbert and Walter H. Hodge, both of Mt. Vernon, for respondents.

HOLCOMB, J.

The trial court sustained a demurrer to the complaint of appellants, upon which they refused to plead further, and stood upon the complaint, whereupon the action was dismissed. The error claimed is in the sustaining of the demurrer and dismissing the action. The complaint briefly sets forth the following facts:

Plaintiffs in common with other trap owners holding trap locations on West Shore, West Beach, Whidby Island, and in Burroughs Bay adjacent to Fidalgo Island, are engaged in the common enterprise of fishing and taking salmon with traps at the same time in each year, and from the same schools. The waters in which plaintiffs' traps and the traps in Burroughs Bay, and upon West Beach and West Shore, Whidby Island, are situated, are contiguous, connected, form a part of Puget Sound as defined by all orders of the State Fisheries Board and the fish in question pass successively along West Beach to and through Deception Pass into Skagit Bay, where the traps of plaintiffs are located, or through Burroughs Bay and around Fidalgo Island to Skagit Bay, or southerly along the west shore of Whidby Island, and around the southerly end thereof, and through Saratoga Passage into Skagit Bay. The preserve created by the portion of the order complained of attempts to prohibit fishing within Deception Pass and within Skagit Bay without any application to the waters of Burroughs Bay or of West Beach or West Shore, Whidby Island, contiguous to and connected with the same. The traps maintained in Burroughs Bay and upon West Beach and West Shore are 24 in number; the traps maintained by plaintiffs and affected by the portion of the order complained of are 10 in number. In the year 1923 plaintiffs, by order of the board, were compelled to use 5- inch mesh web in their traps, while the Burroughs Bay, West Beach, and West Shore traps used during the same year a 3-inch mesh web in their traps. Otherwise the traps of plaintiffs and the West Beach, West Shore, and Burroughs Bay owners were all operated similarly and with similar appliances and equipment. In connection with these allegations it is alleged that the spawning ground used by the schools of salmon passing by and through the traps of plaintiffs, and upon West Beach, and West Shore and in Burroughs Bay aforesaid, and common to all of said salmon, are located in the Skagit river, and that in all fishing operations heretofore and which will be hereafter conducted by each and all of the trap owners of West Beach, West Shore, and Burroughs Bay and Skagit Bay, including the plaintiffs, the same schools of salmon in passing to the spawning grounds in Skagit river have passed and will pass successively by and through all of the traps; that great numbers of the various species of salmon have been annually taken by the West Beach, West Shore, and Burroughs Bay traps, which number has been annually greatly in excess of the salmon taken by plaintiffs in their Skagit Bay traps; that if plaintiffs' traps are in any wise destructive to the various species of salmon described in the complaint, and if plaintiffs' combined operations have in any wise prevented perpetuation of the salmon species, the West Beach, West Shore, and Burroughs Bay traps have contributed much more thereto than plaintiffs' traps, and that the enforcement of the portion of the order complained of is discriminatory, since its effect is to grant to persons similarly situated as plaintiffs, viz. the West Beach, West Shore, and Burroughs Bay trap owners, the right to fish from the same schools of salmon and to deny to plaintiffs, as persons similarly situated, the right so to do, creating in effect a monopoly in favor of West Beach, West Shore, and Burroughs Bay trap owners, to the prejudice and injury of plaintiffs in their constitutional right as persons similarly situated to also fish from the same schools of salmon, and that the portion of the order complained of is a discriminatory and class enactment, and in violation of the constitutional rights of plaintiffs as citizens of the United States and of the state of Washington under the provisions of section 12 of Article 1 of the state...