Olson v. State Conservation Comm'n

• Decision Date: 24 June 1940
• Citation: 293 N.W. 262,235 Wis. 473
• Parties: OLSON et al. v. STATE CONSERVATION COMMISSION.
• Court: Wisconsin Supreme Court

235 Wis. 473

293 N.W. 262

OLSON et al.

v.STATE CONSERVATION COMMISSION.

Supreme Court of Wisconsin.

June 24, 1940.

Appeal from an order of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Affirmed.

In the action, commenced November 9, 1939, the plaintiffs, Oscar Olson, George Lince, Raymond Tuttle, Frank Sacotte, Joseph Bossler, Herbert H. Ewig and Everett LaFond, sought (1) to restrain the defendant, State Conservation Commission of Wisconsin, hereinafter called the Commission, from enforcing the provisions of its order No. F-405 in so far as it applies to commercial fishing in the southern waters of Green Bay, the northern waters of Green Bay and Lake Michigan; (2) to vacate and set aside the said order; and (3) to have ch. 366, Laws of 1937, pursuant to which said order was purportedly made, declared unconstitutional and void. The action was commenced in the circuit court for Marinette county. Upon the application of the Commission, made pursuant to sec. 261.01(9), and sec. 29.174, Stats.1939, the place of trial was changed to Dane county. The Commission demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. After due hearing, the trial court held that the complaint did not state a cause of action. From an order sustaining the demurrer, entered April 27, 1940, the plaintiffs appealed. The facts alleged in the complaint will be summarized in the opinion.Evrard & Evrard and Evans & Merrill, all of Green Bay, for appellants.

John E. Martin, Atty. Gen., Warren H. Resh, Asst. Atty. Gen., and Col. A. H. Smith, of Madison, Counsel for Conservation Commission (Wm. J. P. Aberg, of Madison, of counsel), for respondent.

NELSON, Justice.

The complaint is long and somewhat repetitious. So many of its allegations as are necessary to an understanding of the questions presented may be summarized as follows: The plaintiffs are commercial fishermen. Commercial fishing throughout the history of this state has been a very important industry. For many years, the plaintiffs have been engaged in fishing in the waters of southern Green Bay, northern Green Bay and Lake Michigan. The legislature has recognized that different localities require different fishing regulations and has divided the waters of this state into inland waters and outlying waters. Commercial fishing is confined principally to the outlying waters as defined in sec. 29.01(4), Stats.1939. The legislature, in the past, has enacted laws relating to the taking of fish from the outlying waters. The legislature, in the past, has also designated closed seasons for different species of fish. For a number of years, the plaintiffs and other commercial fishermen have been licensed annually under laws with which the plaintiffs have fully complied. In 1937, the legislature enacted ch. 366, and attempted thereby to delegate to the Commission the power to regulate fishing in the outlying waters of this state. Subsequent to the enactment of that chapter the Commission undertook to regulate commercial fishing in the outlying waters of this state, and in purported pursuance of said chapter promulgated certain orders which changed certain provisions of ch. 29, Stats.1935, theretofore enacted by the legislature, and changed the types of nets used by the plaintiffs, the gear or mesh thereof and the seasons for commercial fishing, as a result of which practically all of the provisions of ch. 29, as theretofore enacted by the legislature, were changed. The complaint further alleges that late in the year 1937, the Commission adopted order No. F-307, which was approved by the governor in January, 1938; that said order purported to regulate the types of nets, the gear or mesh thereof, which in large part was to become effective on November 21, 1939; that thereafter the plaintiffs, and other commercial fishermen, attempted to comply with said order by reslugging their old nets and by purchasing new nets at great expense to them; that in the fall of 1939, the defendant adopted order No. F-405, which was approved by the governor on October 21, 1939, and which was published on November 2 or 3, 1939; that said order was published only in certain newspapers, some of which were not in general circulation in the district where the plaintiffs conducted their industry; that said order No. F-405 repealed order No. F-307 and made new regulations which were to become effective on November 21, 1939, regarding the sizes of the mesh of certain nets used by the plaintiffs and others in fishing in and upon outlying waters; that ch. 366 is unconstitutional and many of the provisions of order No. F-405 are unreasonable and unjust; that the plaintiffs, and others similarly situated, are threatened with prosecutions for violations of the provisions of said order No. F-405, and that the plaintiffs and others are subjected to the risk of having their properties unlawfully confiscated to their irreparable injury and damage.

[1][2] It appears from the complaint that the plaintiffs attempted to state two different causes of action,-one grounded upon the assertion that ch. 366 is unconstitutional and the other grounded upon the assertion that order No. F-405 is unlawful, or unjust and unreasonable. Sec. 29.174(8) (a). The Commission interposed only a general demurrer to the complaint. It did not demur on the ground that several causes of action were improperly united in the complaint. Under a general demurrer, it is the duty of the court to determine whether upon facts alleged in the complaint the plaintiff is entitled to any measure of judicial redress, either equitable or legal. Sec. 263.07, Stats.1939. By not demurring to the complaint on the ground that several causes of action were improperly united in it, the Commission waived that objection. Sec. 263.12, Stats.1939. In Wisconsin Hydro Electric Co. v. Public Service Comm., 234 Wis. 627, 291 N.W. 784, 788, it was considered that the constitutionality of sec. 196.49(4) (c) could not be raised in that statutory action in which the issue was confined to the “lawfulness and reasonableness” of the order of the Public Service Commission. In that action, however, one of the grounds of demurrer was that several causes of action had been improperly united in the complaint.

[3] Courts unquestionably have the power to enjoin state officials from enforcing statutes which contravene the constitution. John F. Jelke Co. v. Beck, 208 Wis. 650, 661, 242 N.W. 576.

The plaintiffs first contend that since ch. 366 delegates legislative power to the Commission which is to be exercised in limited localities, i. e., in the outlying waters as defined by law, it offends against sec. 18, art. IV of our constitution, which provides: “No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.”

Ch. 366, repealed subsec. (10) and (11) of sec. 29.174 and sec. 29.085, of the Statutes. It then provided; “Section 2. A new section is added to the statutes to read: 29.085 The conservation commission is hereby authorized to regulate hunting and fishing on and in all interstate boundary waters, and outlying waters specified in subsection (4) of section 29.01. Any act of the conservation commission in so regulating the hunting and fishing on and in such interstate boundary waters and outlying waters shall be valid, all other provisions of the statutes notwithstanding, provided such powers shall be exercised pursuant to and in accordance with section 29.174 and subsection (7) of section 23.09.”

At the time ch. 366 was enacted, sec. 29.174, therein referred to, in part provided:

“(1) There shall be established and maintained, as hereinafter provided, such open and close seasons for the several species of fish and game, and such bag limits, size limits, rest days and conditions governing the taking of fish and game as will conserve the fish and game supply and insure to the citizens of this state continued opportunities for good fishing, hunting and trapping.

“(2) It shall be the duty of the conservation commission and it shall have power and authority to establish open and close seasons, bag limits, size limits, rest days and other conditions governing the taking of fish or game, in accordance with the public policy declared in subsection (1). Such authority may be exercised either with reference to the state as a whole, or for any specified county or part of a county, or for any lake or stream or part thereof.”

Sec. 23.09(7), Stats.1937, also referred to, in part provided: “(7) Commission rules, studies, surveys, services, penalties, powers. The commission is hereby authorized to make such rules and regulations, inaugurate such studies, investigations and surveys, and establish such services as they may deem necessary to carry out the provisions and purposes of this act, and any violation of any provisions of this act, *** shall constitute a misdemeanor and be punished as hereinafter provided.”

Sec. 29.085, Stats.1935, repealed by ch. 366, Laws of 1937, provided: “29.085 Commission to regulate hunting and fishing in interstate waters. The conservation commission is hereby authorized to regulate hunting and fishing on and in all interstate boundary waters, except the outlying waters specified in subsection (4) of section 29.01, and excepting boundary waters between the states of Wisconsin and Iowa, and St. Louis river, St. Louis bay, Superior bay, and Allouez bay, in conjunction with the proper authorities of adjoining states, for the purpose of effecting a similarity of laws pertaining to the fish and game of such waters. Any act of the conservation commission in so regulating the hunting and fishing on and in such interstate boundary waters shall be valid, all other provisions of the statutes notwithstanding.”

It is clear that the legislature, in enacting ch. 366, intended to delegate additional powers to the Commission...