McMillan v. Sims

• Decision Date: 08 January 1925
• Docket Number: 18602.
• Citation: 231 P. 943,132 Wash. 265
• Parties: McMILLAN et al. v. SIMS et al.
• Court: Washington Supreme Court

231 P. 943

132 Wash. 265

McMILLAN et al. v. SIMS et al.

No. 18602.

Supreme Court of Washington, En Banc.

January 8, 1925

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

On rehearing in banc. Former opinion (129 Wash. 516, 225 P. 240) overruled, and judgment affirmed.

Holcomb Tolman, and Pemberton, JJ., dissenting.

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.

PARKER, J.

The plaintiffs, McMillan and several other owners of fish traps located and heretofore operated by them in the waters of Skagit Bay, sought a decree from the superior court for Skagit county enjoining the defendants, Sims, Ramwell, and Blake, constituting the state fisheries board, and certain other law enforcement officers, from enforcing an order made and promulgated by the state fisheries board establishing Skagit Bay and the arms thereof as a fish preserve, and prohibiting the taking of salmon from those waters except by hook and line. The defendants' demurrer to the complaint being by the court sustained for want of alleged facts stating cause for relief, and the plaintiffs electing to stand upon their complaint and not plead further, final judgment of dismissal was rendered against them, from which they have appealed to this court.

The case was heard upon the appeal in department 1 of this court, and a decision rendered by that department on May 5, 1924, reversing the overruling of the demurrer and the judgment of dismissal rendered by the trial court. A rehearing was ordered before the court en banc, and the case is now before us for further consideration.

While we regard the statement of the facts made in the department opinion as a fair and truthful summary of the allegations of the complaint, we think our present view of the correct disposition of the case will be more readily understood by a restatement of what we regard as the controlling facts of the case. Such facts may be summarized from the somewhat voluminous and involved allegations of the complaint read in the light of facts we may judicially notice, as follows: Skagit Bay is bounded on the east by the mainland where the waters of the Skagit river enter its waters through the several mouths of that river. It is bounded on the south for the most part by Camano Island, a comparatively small slough connecting with the waters to the south between that island and the mainland and a wide navigable channel, known as 'Saratoga Passage,' connecting with the waters to the southwest between that island and Whidbey Island. It is bounded on the west by Whidbey Island. Deception Pass, one of its principal arms, extends westerly along the northerly end of Whidbey Island opening into the waters of the straits of Juan de Fuca. It and its Deception Pass arm are bounded on the north by Fidalgo Island, there being a comparatively small slough connection with the waters to the north between that island and the mainland to the east. Salmon coming from the ocean through the straits of Juan de Fuca seek the waters of Skagit Bay and the fresh water mouths of the Skagit river for the most part through Saratoga Passage and Deception Pass. The plaintiffs own, and for some years past have operated, salmon fish traps in the waters of Skagit Bay and thereby have taken large quantities of salmon from those waters. A number of other persons own, and for some years past have operated, salmon fish traps in the waters immediately to the west of Whidbey and Fidalgo Islands, whereby large quantities of salmon have been and are now being taken while on their way seeking entrance through Saratoga Passage and Deception Pass into Skagit Bay and the fresh water mouths of the Skagit river. These two classes of fish-trap owners and operators have thus heretofore taken salmon from the same schools of salmon but at these different locations in the course of the movement of the schools. The plaintiffs heretofore exercised this privilege in the waters of Skagit Bay by virtue of permits granted by the fisheries authorities of the state. The owners and operators of salmon traps located immediately to the west of Whidbey and Fidalgo Islands have been and are now exercising this privilege by virtue of permits granted by the fisheries authorities of the state. The state fisheries board has made and promulgated an order and rule creating a fish preserve which prohibits the taking of salmon except with hook and line within the boundaries of Skagit Bay and its arms, including Deception Pass, and thus has taken from the plaintiffs the privilege of continuing the taking of salmon by the operation of their traps in the waters of Skagit Bay.

Allegations are further made in the complaint with a view of showing that the order of the state fisheries board is capricious and arbitrary to the extent that the court should hold it void as unconstitutionally according privileges and immunities to the owners of the traps located immediately west of Whidbey and Fidalgo Islands which are withheld from the plaintiffs as owners and former operators of traps in Skagit Bay; also, as depriving the plaintiffs of their property, to wit, rendering valueless their fish traps in Skagit Bay, without due process of law. These particular allegations are summarized in the department opinion, but we regard them as of no controlling force here, since, as will presently appear, they relate to possible considerations and reasons prompting the state fisheries board to make the order, with which the courts have no concern.

Let us at the outset be reminded that in the regulation of and restrictions upon the taking of the fish from the waters of the state, the state is but dealing with its own property over which its control is as absolute as any other owner has over his property. In State v. Tice, 69 Wash. 403, 125 P. 168, 41 L. R. A. (N. S.) 469, we said:

'The decisions of the courts in this country, so far as they have come to our notice, are all in unison in holding that there is no private right in the citizen to take fish or game, except as such right is either expressly or inferentially given by the state.'

This view of the law has been steadfastly adhered to without qualification since the rendering of that decision. Cawsey v. Brickey, 82 Wash. 653, 144 P. 938; Vail v. Seaborg, 120 Wash. 126, 207 P. 15.

By what agency may the state act and speak in the making of such regulations and restrictions as it desires to put into force with reference to the taking of fish from its waters? Of course, it may do so through direct action of its Legislature directly and specifically prescribing rules and territorial limits within which fish may and may not be taken. It is elementary law that, when such regulations and restrictions are directly so prescribed by the Legislature, the courts have no concern with the reasonableness and wisdom of such regulations and restrictions; and, since the Legislature may delegate to some other state agency, in this case to the state fisheries board, the determination of territorial limits within which fish may or may not be taken (Cawsey v. Brickey, supra), we think the action of such agency, within the scope of its legislative...