State ex rel. Campbell v. Case, 25661.

Decision Date02 July 1935
Docket Number25661.
Citation47 P.2d 24,182 Wash. 334
CourtWashington Supreme Court
PartiesSTATE ex rel. CAMPBELL v. CASE et al.

As Amended August 7, 1935.

Original application for a writ of mandate by the State, on the relation of Daniel Campbell, against Otto A. Case, as treasurer of the state of Washington, and others.

Writ denied.

W. H Abbott and Ralph O. Olson, both of Bellingham, and Kerr McCord & Carey, of Seattle, for relator.

G. W Hamilton and George Downer, both of Olympia, for respondents.


This is an original application in this court for a writ of mandate requiring the issuance to the relator, pursuant to his application therefor filed with the state treasurer, of renewals, for the year 1935, of certain pound net licenses. Three other cases, Nos. 25627, 25628, and 25629, involving substantially the same state of facts, are pending in this court, and the parties therein have stipulated that our decision in this case will control and determine those cases.

The essential facts, as they appear in relator's affidavit and admitted by the respondents, are, in brief: Relator, a citizen of the United States, of lawful age, and a resident of the state for many years past, was, on April 2, 1934, the owner of twopound net, or fish trap, locations situated in the Puget Sound district in this state, held under pound net licenses issued to him by the director of licenses of the state; these annual licenses having been issued to him in renewal of like licenses issued April 1, 1933. These pound net locations have a value in excess of $20,000, and all requirements of existing law necessary to their retention by relator have been complied with; that each location is valuable for the purpose of taking food fish other than salmon. Relator has on hand, for the construction of pound nets on these two locations, equipment of the reasonable value of $10,000. The operation of these fishing appliances requires the use of a large amount of capital and the employment of much labor. It is alleged that the annual personal property tax of these locations and equipment represents a substantial part of the tax revenue to the county in which they are situated, and that personal property taxes annually levied upon and collected from relator and other owners of fish traps in the northwest counties of the state represent a material item in the tax revenues of such counties.

Relator made his application for the renewal of the licenses, accompanied by the proper fees, but the respondents have refused to issue the licenses to him, on the sole ground that Initiative 77 (chapter 1, Laws 1935) prohibits the operation of pound nets or fish traps within the waters of the state. Relator is desirous of constructing, and will, if licenses are issued to him pursuant to his application, construct pound nets on his locations and operate them during the current season; and, if licenses are denied him, his locations and equipment will be rendered valueless.

Section 1 of the act makes it unlawful to fish for, catch, or take any species of salmon, salmon trout, trout, or steel head by any means other than hook and line, except as thereafter in the act provided, within certain waters lying southerly, easterly, and southeasterly of a line defined therein.

Section 2 of the act provides that no area theretofore or thereafter set apart as a salmon preserve by the state shall, by any provisions of the act, be opened to commercial fishing.

Section 3 permits commercial trolling for salmon, with no more than six hooks to one boat, in the area prescribed in section 1, during the seasons and subject to the regulations prescribed from time to time by the state department of fisheries.

Section 4 provides that any person, firm, or corporation who shall have held, in either of the years 1932 or 1933, a license from the director of licenses of the state for the operation of a gill net within the waters of Puget Sound, may be licensed to operate the gill net for the purpose of catching salmon only according to the regulations ulations of the fisheries department of the state for gill nets for the year 1933, within the waters described in the first section of the act, for each succeeding year after its effective date, by making application to the director of licenses and paying to the state treasurer the fee prescribed; and no other person, firm, or corporation shall be licensed hereafter to operate a gill net in the waters described in the first section. Licenses issued under this section are to be personal and not transferable, either voluntarily or involuntarily, or by operation of law. This section is qualified by a proviso that, if for any reason any of its provisions shall be held to be unconstitutional, no license shall issue to any person, firm, or corporation for the operation of a gill net within any of the waters described in the first section, except as permitted by the fisheries department under existing law.

Section 5 permits commercial fishing in the area described in section 1 during certain defined periods, with a proviso that no fisherman shall employ any of the appliances inhibited by section 8 of the act, nor any gill net except as permitted by section 4.

Section 6 prohibits gill nets, in the Columbia river, exceeding 250 fathoms in length; section 7 prohibits the use of drag seines in that river.

Sections 8 and 9 are as follows:

'Sec. 8. It shall be unlawful to construct, install, use, operate, or maintain, within any of the waters of the State of Washington, any pound net, fish trap, fish wheel, scow fish wheel, set net, weir, or any fixed appliance for the purpose of catching salmon, salmon trout, or steel head, or to take salmon, salmon trout, or steel head by any such means.
'Sec. 9. The provisions of this Act do not apply to fishing by Indians under Federal regulation, or the use of any device or means by the state or national government in catching fish for propagation or scientific purposes.'

Section 10 provides penalties for the violation of the act.

Section 11 is a saving clause and provides that, if any section or provision of the act shall be held unconstitutional or otherwise invalid, such invalidity shall not affect the validity of the act as a whole, or of any section, provision, or part not adjudged to be invalid or unconstitutional.

Finally, the act repeals all acts and parts of acts in conflict with its provisions.

Relator's first and principal challenge to the act is that it exempts from its provisions a class of citizens, namely, Indians, under federal regulation, in violation of section 12 of article 1 of the State Constitution and of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. This contention is based upon the fact that, by the congressional Act of June 2, 1924, c. 233, 43 Stat. at Large, 253 (8 USCA § 3), all Indians born within the territorial limits of the United States are declared to be citizens of the United States; and being citizens of the United States, Indian residents of the state are citizens thereof by virtue of the Fourteenth Amendment. Therefore, by this exemption, a considerable body of citizens of Indianblood are granted privileges and immunities denied to other citizens of the state.

As to the source of the state's power in the control and regulation of the taking of fish in its territorial waters, we said, in McMillan v. Sims, 132 Wash. 265, 231 P. 943, 944:

'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."

But while the state owns the fish in its waters, in its proprietary right, it holds title as trustee for all the people and for the common good, and regulations made for the use of this common property must bear equally on all persons similarly situated. Cawsey v. Brickey, 82 Wash. 653, 144 P. 938. It therefore follows that if the act does, in fact, as contended by the relator, grant a special exemption to a body of citizens of the state, denied to all other citizens, it thereby contravenes the cited section of the Constitution. The pertinent part of section 9 reads: 'The provisions of this act do not apply to fishing by Indians under Federal regulation. * * *'

The solution of our problem is dependent upon the construction of the language of this clause. The relator contends that the phrase 'under Federal regulation' qualifies 'Indians,' while the respondents argue that the phrase qualifies the word 'fishing.' There are accepted canons of construction for determining the meaning of doubtful language, but these canons are not inflexible in their use. Their application in particular provisions may be qualified. In 2 Lewis' Sutherland, Statutory Construction (2d Ed.) § 420, it is said: 'Relative and qualifying words and phrases, grammatically and legally, where no contrary intention appears, refer solely to the last antecedent.'

But in the same section, it is said: 'This principle is of no great force; it is only operative when there is nothing in the statute indicating that the relative word or qualifying provision is intended to have a different effect. And very slight indication of legislative purpose or a parity of reason, or the natural and...

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    • United States
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