Miles v. Veatch
| Decision Date | 30 June 1950 |
| Citation | 220 P.2d 511,189 Or. 506 |
| Parties | MILES et al. v. VEATCH et al. (COLUMBIA RIVER FISHERMEN'S PROTECTIVE UNION et al., Intervenors). |
| Court | Oregon Supreme Court |
[Copyrighted Material Omitted]
Cecil Quesseth, Assistant Attorney General, argued the cause for appellants. With him on the brief was George Neuner, Attorney General of Oregon.
A. C Fulton, of Astoria, and Jay Bowerman, of Portland, argued the cause and filed a brief for respondents.
Ben Anderson Portland, argued the cause for intervenors-appellants. On the brief were Anderson & Franklin, of Portland.
Before LUSK, C. J and BRAND, BELT, ROSSMAN, HAY, and LATOURETTE, Justices.
In this case plaintiffs sought a declaratory judgment that chapter 3, Oregon Laws 1949, is unconstitutional and void, and an injunction against the public authorities to prevent them from enforcing such act.
Plaintiffs are drag seine fishermen, pursuing their calling upon the Columbia River in Oregon. We shall refer to them either as 'plaintiffs' or as 'the seiners'.
Defendants are the members of the Fish Commission of the State of Oregon, the State Master Fish Warden, and the Department of State Police. For convenience, we shall refer to them collectively as 'the Commission'.
Certain other persons, who are gill-net fishermen upon the Columbia River and an incorporated labor union whose members are such gill-net fishermen, intervened in the action by permission of the circuit court. These intervenors will be referred to herein as 'the gill-netters'.
The initiative act prohibits the taking of salmon, salmon trout or steelhead by means of 'fixed' fishing appliances in any of the waters of the Columbia River or its tributaries in the state of Oregon. The act does not apply to fishing by Indians under federal regulations, or to the taking of fish for propagation or scientific purposes by the state or national governments.
The amended complaint alleges substantially as follows: The individual plaintiffs are owners or lessees of certain shorelands or tidelands or islands in the Columbia River in Oregon suitable and for many years used for drag seine fishing operations. Plaintiffs, Columbia River Packers Association, Inc., and H. K. Parker, are duly licensed by the state of Oregon to operate drag seines. Each of the plaintiffs owns the equipment required to operate a drag seine on his respective property. This equipment represents an investment, the total value of which is in excess of $140,400.00. The drag seines are suitable only for drag seine fishing, and have no value for any other purpose. The individual plaintiffs are fishermen of wide experience, possessing the necessary skill to enable them to follow the business of drag seine fishing as a lifetime occupation. They have, moreover, established excellent reputations as drag seine fishermen, and their catch is in demand in the fish markets. Their ages run from 25 to 60 years and over. They are for the most part men of family, home owners and taxpayers. If they are denied the right to follow their life vocation of drag seine fishing, they will lose not only the value of their fishing equipment and shorelands and islands, but also their ability to support and maintain their families.
Various kinds of fishing equipment are used in catching food fishes in the Columbia River, but, if the initiative act is adjudged to be valid and enforceable, only drift gill-net equipment will be 'legal'.
The latest complete tabulations of the catch of food fish in the Columbia River, according to the records of the Commission, are those for the years 1945 and 1946, which are as follows: [Presumably the figures given represent pounds.]
Total Catch
1945 1946
Gill net _________________________ 7,981,915 7,516,806
Set net __________________________ 238,056 292,292
Dip net __________________________ 1,016,500 1,468,147
Seine ____________________________ 2,117,188 2,659,383
Trap _____________________________ 1,028,523 849,734
Set line _________________________ 55,744 83,054
Miscellaneous ____________________ 252,000 3,203
On November 2, 1948, chapter 3, Oregon Laws 1949, was adopted by the people of Oregon under initiative process. There is exhibited a copy of the initiative bill, including the legislative title, the short ballot title, and the general ballot title. By the legislative title, the proposed act was limited in its effect to the taking of salmon by the use of drag and whip seines, fish traps and other fixed appliances, but section 1 goes beyond the limits of the title by making it unlawful to use any drag seine in the Columbia River or its tributaries, and section 2 likewise goes beyond the limits of the title by making it unlawful to use, within said waters, any pound net, fish trap, fish wheel, scow fish wheel, set net, or weir, or any fixed appliances for the purpose of catching salmon trout or steelhead. Section 3 undertakes absolutely to prohibit the use of whip seines for any purpose in said river, although it is customary to use whip seines therein for the capture of any type of commercial fish when lawful to do so.
The ballot title and general title were confusing and misleading, in that they included whip seines and fish wheels, whereas the taking of salmon, shad, sturgeon or other anadromous or food or shell fishes in the Columbia River in this state has been unlawful since 1923, Sec. 83-614, O.C.L.A., and the use of fish wheels in the Columbia River in Oregon has been unlawful since 1927. Section 83-513, O.C.L.A. The short ballot title was defective, misleading and confusing in that it purported to prohibit fishing for salmon in the Columbia River with fixed appliances, whereas the general ballot title and the body of the act purported to prohibit fishing for salmon, salmon trout and steelhead with drag seine, 'which is not a fixed appliance.' There follows a description of a drag seine and the method of its operation in fishing. Drag seines are not fixed appliances, and are recognized by the state in its commercial fishing license provisions as not being fixed appliances. Section 83-615, O.C.L.A., classifies traps, pound nets, set nets and setlines as fixed appliances, and classifies seines, gill-nets and dip-nets separately therefrom. The short ballot title was defective in that it prohibited salmon fishing only, as did the legislative title and the heading contained on the initiative petition. The failure to include in the legislative title steelhead and salmon trout and the various types of fishing gear referred to in the bill was confusing to the voters and violative of Art. IV, section 20 of the Oregon Constitution. The word 'salmon' cannot include steelhead and salmon trout, and section 36, chapter 105, General Laws of Oregon, 1921, being section 83-408 [should be 83-303], O.C.L.A., which defines salmon as including 'chinook, silversides, steelheads, bluebacks, sockeye and all anadromous species of salmon and trout,' except steelheads in the Rogue River, is void, so far 'as it might effect [affect] this initiative measure', in the following particulars:
(1) The legislative title of such chapter 105 does not include any statement showing an intention to define salmon, or to define steelheads and all anadromous species of salmon and trout as salmon; and steelheads and salmon trout and other anadromous trout are not salmon, and are not understood to be salmon by the general public and the voters of the state.
(2) The legislature was without power to make steelheads, salmon trout and all anadromous trout into salmon by legislative definition.
(3) Said section so defining salmon was a part of a new complete fish code adopted by the legislature in 1921; and said chapter 105 contains 171 sections, and section 36 thereof must be construed as a definition pertaining to that act alone or acts directly amendatory thereto, and not to a separate act or acts subsequently passed, and particularly by initiative petition.
There are five distinct types of salmon indigenous to the North Pacific Ocean and subject to commercial fishing, to wit, chinook or King salmon, blueback or sockeye, silverside or coho, chum or dog salmon, and pink or humpback salmon. Of these, said statute includes only three, to wit, chinook or King salmon, blueback or sockeye salmon and silverside or coho salmon, and omits chum or dog salmon and pink or humpback salmon. The statute sets out the blueback and sockeye as separate types, when, as a matter of fact, they are identical. The steelheads and salmon trout are distinct members of the trout family and are understood to be such by persons connected with fish life and commerce.
The Columbia River Fishermen's Protective Union is an Oregon corporation having its membership limited to licensed gill-net fishermen. One of its principal purposes is to monopolize and control the catching of salmon and other food fishes on the Columbia River. Said union and its membership and those affiliated with it have undertaken, agreed and conspired with each other to eliminate all other types of commercial fishing for food fish on the Columbia River in order to secure to themselves a monopolistic control of the fish industry on said river. The gill-net catch is practically all made by members of said union, and the total thereof is a very large part of the total catch of all food fishes of the river. The catch of food fishes, by the gear described as 'bag net' or 'dip net' in the reports, is practically all the result of fishing by Indians, who are exempted from the operation of the initiated measure. The fish reported as troll fish are...
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