State ex rel. Bacich v. Huse

• Decision Date: 04 August 1936
• Docket Number: 26175.
• Citation: 187 Wash. 75,59 P.2d 1101
• Parties: STATE ex rel. BACICH v. HUSE, Director of Licenses.
• Court: Washington Supreme Court

59 P.2d 1101

187 Wash. 75

STATE ex rel. BACICH v. HUSE, Director of Licenses.

No. 26175.

Supreme Court of Washington, En Banc.

August 4, 1936

Original application for a writ of mandate by the State of Washington on the relation of Steve Bacich, against Harry C. Huse, as State Director of Licenses.

Writ issued.

Clarence L. Dougherty and Clarence J. Coleman, both of Everett, for relator.

G. W Hamilton, Atty. Gen., and L. C. Brodbeck and George Downer Asst. Attys. Gen., for respondent.

STEINERT Justice.

This is an original application made in this court for a writ of mandamus to compel the respondent to issue to the relator a license to take salmon fish from the waters of Puget Sound by means of a gill net.

At the general election held on November 6, 1934, initiative measure No. 77, relating to the taking and catching of fish, was passed by vote of the people. The law became effective December 3, 1934 and now appears as chapter 1, Laws 1935, p. 3 et seq., Rem.1935 Supp. § 5671-1 to § 5671-11 [P.C. § 2534-21 to § 2534-31], inc.

By section 1 of the act (Rem.1935 Supp., § 5671-1 [P.C. § 2534-21]), it is made unlawful to fish for, catch, or take any 'species of salmon or salmon trout, trout, or steel head,' except as in the act provided, with any appliance, or by any means whatever, except with hook and line, within certain designated waters of the Straits of Juan de Fuca or Puget Sound. Further reference to this section will be made later herein.

The immediate purpose of this action is to test the constitutionality of that portion of section 4 of the act (Rem.1935 Supp. § 5671-4 [P.C. § 2534-24]) which reads as follows: 'Any person, firm or corporation, who shall have held in either the years 1932 or 1933 a license from the director of licenses of the State of Washington, for the operation within the waters of Puget Sound of any gill net, may be licensed for the operation of, and may operate, a gill net, for the purpose of catching salmon only, according to the fishing regulations of the fisheries department of the State of Washington for gill nets for the year 1933, within the waters described in the first section of this act (§ 5671-1) for each succeeding year after the taking effect of this Act, by making application therefor to said director of licenses, and paying to the treasurer of the State of Washington the sum of seven and 50/100 dollars ($7.50) for each year for which such license is issued; and no other person, firm, or corporation, shall be licensed hereafter to operate, or hereafter shall operate, a gill net in the waters so described in said first section. Said license shall be personal, and neither said right, nor any license issued pursuant thereto shall be transferable, either voluntarily or involuntarily, or by operation of law. If said licensee shall fail during any year to apply for such license, his right to be licensed thereafter shall terminate.'

Immediately following the language just quoted, is a proviso in the section, reading thus: ' Provided, That if for any reason any of the foregoing provisions of this section shall be held to be unconstitutional, no license shall be issued to any person, firm, or corporation, for the operation of a gill net within any of the waters described in said first section, except as may be permitted by the fisheries department of the State of Washington under existing law.' (Italics ours.)

The relator did not hold a gill net license for the year 1932 or for 1933, and, for that reason alone, his application for a license for the year 1936 was refused by the respondent.

The contention of relator is that section 4 of the act, exclusive of the proviso, violates the following constitutional provisions: (1) Article 1, section 12, of the State Constitution, prohibiting special privileges and immunities; (2) that provision of the Fourteenth Amendment of the United States Constitution which prohibits the denial of the equal protection of the laws to any person within the state; and (3) article 12, section 22, of the State Constitution prohibiting monopolies. We shall consider only the first and second grounds of the contention.

Article 1, section 12, of the State Constitution reads as follows: 'No law shall be passed granting to any citizen, class of citizens, or corporation, other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.'

The Fourteenth Amendment of the Constitution of the United States, in so far as it is pertinent here, reads as follows: 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; * * * nor deny to any person within its jurisdiction the equal protection of the laws.'

If section 4 of the above act, exclusive of the proviso, be held constitutional, then relator would not be entitled to a license. If, however, it be held unconstitutional, then he would be entitled to the issuance of a license unless section 1 of the act, read in connection with the proviso in section 4, is to be construed as prohibiting all fishing with gill nets.

By way of preface, it may be observed that in the case of State ex rel. Campbell v. Case, 182 Wash 334, 47 P.2d 24, it was held that a provision in the act (section 9 [Rem.Rev.Stat. § 5671-9]) here involved exempting 'Indians under Federal regulation' from the application of section 8 of the act (Rem.Rev.Stat. § 5671-8) relating to the use of pound nets, fish traps, fish wheels, and similar appliances, did not render the act unconstitutional, in violation of article 1, § 12. But that case did not touch the question here. By express reference, it was therein stated that section 4, with which we are here concerned, had no application to the situation then Before the court. So we approach the immediate question Before us as one unaffected by any previous decision upon the subject.

At the outset, we may repeat what has many times been held by this court, namely, that the food fish in the waters of this state belong to and are the sole property of the people thereof; that no person has any inherent or natural right to take such fish as against the state; that the state, in prescribing regulations with respect to taking fish from its waters, is dealing with its own property, over which its control is as absolute as that of any other owner over his property; and that any private right in that regard must be expressly or inferentially given by the state. State v. Tice, 69 Wash. 403, 125 P. 168, 41 L.R.A. (N.S.) 469; Cawsey v. Brickey, 82 Wash. 653, 144 P. 938; Vail v. Seaborg, 120 Wash. 126, 207 P. 15; McMillan v. Sims, 132 Wash. 265, 231 P. 943; State v. Cramer, 167 Wash. 159, 8 P.2d 1004.

But it is equally true, and is uniformly held, that, while the state owns the fish in its waters in its proprietary capacity, it nevertheless holds title thereto as trustee for all the people of the state and for the common good, and therefore regulations made for the use of this common property must bear equally on all persons similarly situated with reference to the subject-matter and purpose to be served by the regulation. Cawsey v. Brickey, 82 Wash. 653, 144 P. 938; Barker v. State Fish Commission, 88 Wash. 73, 152 P. 537, Ann.Cas.1917D, 810; State ex rel. Campbell v. Case, 182 Wash. 334, 47 P.2d 24.

The aim and purpose of the special privileges and immunities provision of article 1, section 12, of the State Constitution and of the equal protection clause of the Fourteenth Amendment of the Federal Constitution is to secure equality of treatment of all persons, without undue favor on the one hand or hostile discrimination on the other.

To comply with these constitutional provisions, legislation involving classifications must meet and satisfy two requirements: (1) The legislation must apply alike to all persons within the designated class; and (2) reasonable ground must exist for making a distinction between those who fall within the class and those who do not.

Within the limits of these restrictive rules, the Legislature has a wide measure of discretion, and its determination, when expressed in statutory enactment, cannot be successfully attacked unless it is manifestly arbitrary, unreasonable, inequitable, and unjust. State v. McFarland, 60 Wash. 98, 110 P. 792, 140 Am.St.Rep. 909; State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L.R.A. (N.S.) 466; Litchman v. Shannon, 90 Wash. 186, 155 P. 783; State v. Cannon, 125 Wash. 515, 217 P. 18; Northern Cedar Co. v. French, 131 Wash. 394, 230 P. 837; Garretson Co. v. Robinson, 178 Wash. 601, 35 P.2d 504.

It is apparent that section 4 of the act applies alike to all persons within the designated class, namely, those who held licenses in either the year 1932 or 1933. The question then remains whether there is any reasonable basis for distinction between persons who held licenses in either of those years and persons who did not. In our opinion, there is no reasonable basis for such distinction. We are of the belief that the classification is not predicated on any fair, just, or natural basis of selection, but is wholly arbitrary and capricious.

Respondent begins with the premise that one of the fundamental objects sought by the act was the conservation of the state's supply of food fish. This may be conceded. Respondent then advances, as a reason for the discrimination and classification, the fact that, at the time of the adoption of the initiative measure, it was recognized that there was a large number of people in the state whose sole means of livelihood was gill netting within the prohibited area, and that it would have been a grave injustice to deprive them of their livelihood; hence, by the...