State ex rel. Pirak v. Schoettler

Decision Date07 October 1954
Docket NumberNo. 32970,32970
Citation274 P.2d 852,45 Wn.2d 367
PartiesThe STATE of Washington, on the relation of Mike PIRAK, Petitioner and Relator, v. Robert SCHOETTLER, as Director of Fisheries, Respondent, Washington Reef Net Owners Ass'n, a voluntary association, and Puget Sound Reef Netters Union, Local 44, a voluntary association, Intervenors. The State of Washington upon the relation of Mike Pirak, to the Honorable Charles T. Wright, Judge of the Superior Court for Thurston County, Respondent.
CourtWashington Supreme Court

Gagliardi, Ursich & Gagliardi, Tacoma, for relator.

Don Eastvold, Seattle, Glenn E. Thomson, Joseph T. Mijich and Richard F. Broz, Olympia, for respondent.

Bogle, Bogle & Gates, Donald E. Leland, Seattle, amici curiae in support of decision of Superior Court.

HAMLEY, Justice.

This proceeding was instituted to prohibit the state director of fisheries from issuing licenses for the use of reef nets in the catching of salmon. An alternative writ of prohibition was granted ex parte on March 31, 1954. The Washington Reef Net Owners Association and the Puget Sound Reef Netters Union, Local 44, Both voluntary associations, were permitted to intervene. A demurrer was interposed and sustained on April 26, 1954, at which time the alternative writ of prohibition was quashed and the action dismissed. The judgment of dismissal is before us for review on a writ of certiorari issued by the chief justice, pursuant to Rule 57, Rules on Appeal, 34A Wash.2d 61, as amended March 1, 1954.

Relator's petition alleges that he, in partnership with others, owns a fishing vessel and is engaged in commercial salmon fishing in the waters of this state. His fishing equipment is suitable only for that purpose, and is worth in excess of $25,000. He next alleges that for the past several years the director of fisheries has issued licenses for what is commonly known as a reef net. This is described as a boxlike device which is enclosed on three sides and the bottom, and open on one side for the entry of salmon. It is made stationary in the water by the use of anchors and other means, and remains in one location for the entire fishing season.

It is further alleged that salmon follow well-defined water routes to their spawning grounds, and that the reef nets are placed along these routes. A license for a reef net is issued for a specific location, whereas all other licenses are issued for free-floating gear, and petitioner is denied the right to fish at or near the locations occupied by a reef net. It is alleged that the licensing of reef nets denies petitioner the right to fish in free and fair competition with others, and that the nets are a menace to navigation.

Relator alleges also that five years ago there were only forty licenses issued for reef nets, but the number has steadily increased, and in 1953 one hundred forty licenses were issued. Finally, the petition alleges that the director of fisheries has indicated an intention to renew old licenses and issue new licenses for reef nets for the year 1954.

Several reasons are set forth in the petition way the issuance of licenses to use reef nets in the manner indicated is unlawful. The only reason urged here, however, is that the use of such devices is prohibited by RCW 75.12.060, Laws of 1951, chapter 271, § 3. This statute and RCW 75.28.220, Laws of 1951, chapter 271, § 20, which must also be considered, read as follows:

'It shall be unlawful to construct, install, use, operate, or maintain within any waters of the state any pound net, round haul net, lampara net, fish trap, fish wheel, scow fish wheel, set net, weir, or any fixed appliance for the purpose of catching salmon, and it shall be unlawful to take salmon by any such means.' RCW 75.12.060.

'A license is required for each and every reef net used in the taking or catching of food fish in the waters of the state, for which license there shall be paid a fee of twenty-two dollars and fifty cents per annum by residents and one hundred twelve dollars and fifty cents per annum by nonresidents.' RCW 75.28.220.

Throughout his petition, relator refers to and describes a reef net as a 'fish trap' or a 'fixed appliance.' He argues that, since he has described the reef net thus in the petition, and since the case is being considered on demurrer, it must be taken as admitted that reef nets are fish traps or fixed appliances as contemplated by the statute. He then argues that, consistent with established rules of statutory construction which compel the harmonization of legislative acts, it must be held that the words 'for the purpose of catching salmon,' as used in RCW 75.12.060, qualify the provisions of RCW 75.28.220. The result, according to appellant, is that the authorization given by RCW 75,28,220 to issue reef licenses for the catching of 'food fish' is limited to licenses to catch food fish 'other than salmon.'

We are not in accord with appellant's view that the allegations of the petition to the effect that reef nets are fish traps or fixed appliances must be taken as admitted. The question before us is not whether, as a matter of fact, reef nets are fish traps or fixed appliances. Rather, the question presented is whether, in using the terms 'fish trap' and 'fixed appliances,' the legislature intended to include reef nets. This is the fundamental legal issue in the case, and calls for a conclusion of law. A demurrer does not admit recitals of conclusions either of fact or law. Hamp v. Universal Auto Company, 173 Wash. 585, 24 P.2d 77. Only facts stated in the petition which are well pleaded are to be considered, and conclusions of the pleader are to be disregarded. In re Johnson's Estate, 187 Wash. 552, 60 P.2d 271.

Relator contends further that if it be decided that his allegations are conclusions, and not admitted for the demurrer, his description of the reef net as a device 'made stationary in the water by anchors or other means' shows it to be a fixed appliance. In this connection, relator appears to argue that the term 'reef net' has a special meaning in the pleadings other than that accepted by fishermen generally and by the legislature.

There is no suggestion in the allegations, however, that anything other than well-recognized equipment is being licensed. On the contrary, in eight different instances the petition refers to the apparatus in question as a device 'known' or 'commonly known' as a reef net. In view of these allegations, it may not now be contended that the term has any meaning other than that contemplated by RCW 75.28.220. Nor may it now be contended that reef nets of unorthodox design are being licensed without the knowledge of the legislature.

Analysis of the two quoted statutes indicates to us that the terms 'fish trap' and 'fixed appliance' were not intended to include reef nets. In those cases where the legislature intended to prohibit the use of...

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25 cases
  • Manor v. Nestle Food Co.
    • United States
    • Washington Supreme Court
    • March 13, 1997
    ...Personnel Bd., 95 Wash.2d 108, 118, 622 P.2d 826 (1980), modified, 95 Wash.2d 962, 633 P.2d 1324 (1981); State ex rel. Pirak v. Schoettler, 45 Wash.2d 367, 371-72, 274 P.2d 852 (1954).3 Similarly, the dissent neglects to undertake the analysis of the regulation required by the APA and our c......
  • Griffin v. Eller
    • United States
    • Washington Supreme Court
    • October 14, 1996
    ...49 Wash.2d 716, 725, 306 P.2d 230, appeal dismissed, 355 U.S. 10, 78 S.Ct. 23, 2 L.Ed.2d 21, (1957), citing State ex rel. Pirak v. Schoettler, 45 Wash.2d 367, 274 P.2d 852 (1954); Paulsell v. Peters, 9 Wash.2d 599, 115 P.2d 708 Since 1982, the Legislature has amended the Act dozens of times......
  • State v. Blake
    • United States
    • Washington Supreme Court
    • February 25, 2021
    ...often pertains. See, e.g. , Pringle v. State , 77 Wash.2d 569, 573, 464 P.2d 425 (1970) (citing State ex rel. Pirak v. Schoettler , 45 Wash.2d 367, 371-72, 274 P.2d 852 (1954) ); see also State ex rel. Ball v. Rathbun , 144 Wash. 56, 59, 256 P. 330 (1927) ("An executive construction is acce......
  • Haberman v. Washington Public Power Supply System
    • United States
    • Washington Supreme Court
    • October 8, 1987
    ...692 P.2d 793. The court need not accept legal conclusions as correct. See Orwick, at 254, 692 P.2d 793; State ex rel. Pirak v. Schoettler, 45 Wash.2d 367, 370, 274 P.2d 852 (1954). When an area of the law involved is in the process of development, courts are reluctant to dismiss an action o......
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