Portland Fish Co. v. Benson

• Decision Date: 12 April 1910
• Citation: 56 Or. 147,108 P. 122
• Parties: PORTLAND FISH CO. et al. v. BENSON et al.
• Court: Oregon Supreme Court

108 P. 122

56 Or. 147

PORTLAND FISH CO. et al. v. BENSON et al.

Supreme Court of Oregon

April 12, 1910

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Suit by the Portland Fish Company and others against F.W. Benson and others. From a decree dismissing the complaint, plaintiffs appeal. Affirmed.

This is a suit to enjoin the board of fish commissioners from enforcing an order made by it closing to fishing the lower Willamette and the Clackamas rivers from March 1 to May 1 of 1910.

The complaint alleges that in the month of January, 1910, the board issued the following order and notice: "Know all men by these presents: That, whereas, the board of fish commissioners of the state of Oregon and the United States Bureau of Fisheries have propagated and stocked and are propagating and stocking the waters of the Willamette and Clackamas rivers and their tributaries, in the state of Oregon, with salmon fish; and whereas, said streams are frequented by salmon fish, and, for the purpose of protecting the same, the said board of fish commissioners has decided to close the said Willamette river and its tributaries below and north of the falls thereof at Oregon City, and all of the Clackamas river and its tributaries, to prevent fishing therein, in any manner whatever, for salmon fish, during the period of time herein specified. Now, therefore, notice is hereby given by said board of fish commissioners that said Willamette river and its tributaries, below and north of the falls thereof at Oregon City, and all of said Clackamas river and its tributaries, are, and each of them is, hereby closed to fishing, in any manner whatever, for salmon fishing between 12 o'clock noon on the 1st day of March, 1910 and 12 o'clock noon on the 1st day of May, 1910; and it is and will be unlawful to fish for or take or catch any salmon fish in any of said waters during said period of the time above specified. Any and all persons whomsoever so fishing in violation of this notice will be prosecuted as by law provided;" that plaintiffs are engaged in the business of catching fish in such streams for market; that the streams are closed by statute from March 15th to April 15th of each year, but during the remainder of the time included in the order they have had and exercised the right to fish in the streams, and that by immemorial custom such right is a vested right. The order was made under the authority of section 4106, B. & C. Comp., and, so far as important here, reads: "The board of fish commissioners is authorized by this act to propagate and stock the various waters and streams of this state with salmon (and other fishes) *** and for the purpose of protecting the same they are hereby authorized to close any stream *** frequented by salmon, or any stream which they have stocked *** (for that purpose) they shall cause notice thereof to be filed in the office of the county clerk in each county in which such stream *** lies, and shall publish such notice in some public newspaper *** for four successive weeks. *** and shall cause like notices to be published for such time in three conspicuous places on the banks of such stream; *** and it shall be unlawful at any time after the expiration of the date specified in said notice for any person to fish *** until notice shall be filed and likewise published *** of the opening of such stream *** for fishing." The proceedings of the board in issuing the notice and in the service thereof are alleged to be irregular, without authority, and void, for the reason, among others, that the order was not authorized by the board at a regular or an adjourned meeting, or at a meeting specially called for that purpose; that the closing of the streams is unnecessary for the protection and guard of the propagation of salmon; that the notice was not served as required by law; that it infringes upon a vested right of plaintiffs and a custom of long standing.

Defendants demurred to the complaint for the reason that it does not state facts sufficient to constitute a cause of suit, and that the court has no jurisdiction of the subject-matter of the suit. The demurrer was sustained, and decree rendered thereon dismissing the complaint. Plaintiffs appeal.

Isham N. Smith, for appellants.

A.M Crawford, for respondents.

EAKIN J. (after stating the facts as above).

Salmon fishing is a very extensive industry in Oregon, and the Legislature has for many years sought to protect that industry by the enactment of various laws, among which is section 4106, B. & C. Comp., above quoted, to the end that the supply of salmon shall not become exhausted and it must be assumed that, in enacting these laws, the Legislature had in mind the conditions and habits of the various species of salmon, so far as known, and some of these conditions and habits will aid us in construing section 4106, supra, which is the authority for the board's action complained of here. It is asserted by those who have made a special study of salmon and their habits that the young fry do not remain in the fresh water, but soon after they are a year old and while they are yet quite small they migrate to the sea. At probably four years of age they return to the streams for spawning, usually to the one in which they were originally spawned. The movement of the salmon up the stream toward the spawning beds is prompted by the breeding instinct, and begins as early as February and may continue as late as October. And it is established that soon after spawning both males and females die, each individual spawning only once. The spawning season begins usually in July, continuing as late as October, varying according to the species, and the locality of the stream. See Manual of Fish Culture, by Geo. M. Bowers, United States Fish Commissioner; and American Food and Game Fishes, by D.S. Jordan and Barton W. Everman. The question arises, Does the statute authorize the board to close the stream against fishing during a period prior to the spawning season? Plaintiffs contend that it only authorizes the closing for the protection of the young fish, but such protection is already provided by section 4074 as amended (Laws 1903, p. 233), which makes it unlawful to take or fish for salmon under 12 inches in length, and also the provisions as to fishing appliances make it impossible to catch the young fry while they are in the streams. Neither is protection needed for the spawning fish thereafter, as they are of no value. But the closed season contemplated by section 4106 may be for an indefinite period which may include the whole year, as neither the season nor the length of the closed period are mentioned, but it may be closed indefinitely, as appears from the last clause of the section, which provides for a notice when the board shall declare the stream open to fishing. The...