State v. Catholic

• Decision Date: 23 March 1915
• Citation: 75 Or. 367,147 P. 372
• Parties: STATE v. CATHOLIC.
• Court: Oregon Supreme Court

147 P. 372

75 Or. 367

STATE v. CATHOLIC.

Supreme Court of Oregon

March 23, 1915

In Banc.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Orazio Catholic was convicted of fishing illegally in the Columbia river, and he appeals. Affirmed.

Two informations were filed in a justice's court of Clatsop county, Or., the charging part of one being as follows:

"Orazio Catholic is accused by this complaint of the crime of fishing for salmon, being a nonresident at said time committed as follows: The said Orazio Catholic, on the 1st day of July A. D. 1914, in the county of Clatsop and state of Oregon, then and there being, did then and there willfully and unlawfully fish for and take and catch salmon fish, with a gill net, in the waters of the Columbia river in said Clatsop county, state of Oregon, he, the said defendant, Orazio Catholic, not being or having been a bona fide resident of the state of Oregon, or the states of Washington or Idaho for the period of six months, but he the said Orazio Catholic, being then and there a citizen and bona fide resident and inhabitant of the state of California, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Oregon."

The other information, omitting the title of the court and cause the signature of the prosecuting officer and the verification, reads:

"Orazio Catholic is accused by this complaint of the crime of fishing without a license, committed as follows: The said Orazio Catholic, on the 10th day of July, 1914, in the county of Clatsop and state of Oregon, then and there being, did then and there take and fish for salmon fish and sturgeon in the waters of the Columbia river, in the said county of Clatsop and state of Oregon, with a gill net without first having obtained a license therefor, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Oregon."

Pleas of not guilty having been interposed, the causes were tried upon agreed statements of facts. The detailed specification thereof as to the charge first hereinbefore set forth is, in substance, as follows: That at all the times stated therein the defendant was and now is a citizen of the United States and a bona fide resident and inhabitant of the state of California, and not a citizen of Oregon, Washington, or Idaho; that he was and is by occupation a fisherman, and on May 1, 1914, came to Oregon to embark in that business on the Columbia river; and that on July 1, 1914, he engaged in fishing for salmon in that stream in Clatsop county, Or., with a gill net and caught such fish therewith.

In respect to the second charge the stipulation is to the effect that W. E. Tallant is, and all the times stated therein was, a citizen of the United States and of the state of Oregon, and had been a bona fide resident thereof for more than 10 years; that on May 1, 1914, he duly obtained a license authorizing him to operate a gill net and to engage in fishing for salmon in the Columbia river until March 31, 1915; that he was the owner of a gill net and a fishing boat, and had complied with all the requirements of law necessary to enable him by such means to take and catch salmon; that on July 10, 1914, he employed the defendant to operate such boat and net, and the latter then took entire possession thereof, and therewith engaged in catching salmon in the Columbia river within Clatsop county, Or., which fish when so taken were delivered to Tallant; that at all the times the defendant had charge of such boat he had no license to operate a gill net on the Columbia river; and that he managed such boat and net as the employé of Tallant.

Based on such agreed statements of facts, the defendant was convicted on both charges, and from the judgments so rendered he appealed to the circuit court of the state of Oregon for Clatsop county, where the causes were tried, without a jury, upon the same statements of facts which the court adopted as its findings, and, predicated thereon, the defendant was again adjudged to be guilty as charged in each case. From these latter judgments he appeals to this court.

G. C. Fulton, of Astoria, for appellant. C. W. Mullins, of Astoria (A. M. Crawford, of Portland, on the brief), for the State.

MOORE, C.J. (after stating the facts as above).

The printed abstract, referring to the trial in the circuit court and to the agreed statements of facts, contains the following recital: "That there was no other testimony or evidence offered or received by either party." A stipulation was filed with our clerk, to the effect that each party might offer in evidence in this court such laws of the state of Washington as might be desired, which enactments should be considered in the same manner as if they had been received in evidence at the trial in the circuit court and incorporated in the bill of exceptions. In another stipulation it was agreed that the two causes should be consolidated.

Section 5293, L. O. L., enacted to protect food fishes, reads:

"It shall be unlawful for any person or persons to take or fish for salmon fish or sturgeon in any of the waters of this state, or in any of the waters upon which this state has concurrent jurisdiction, by any means whatever, except with hook and line, commonly called angling, without first having obtained a license therefor, as in this act hereinafter provided."

Another clause of the statute is as follows:

"It shall be unlawful for any person to take or fish for salmon, sturgeon, or other anadromous fish in any waters of this state unless such person be a citizen of the United States, or has declared his intention to become such, and has been a bona fide resident of the state of Oregon, or the states of Washington or Idaho, for the period of six months; provided, that a license issued by the state of Washington, such state having concurrent jurisdiction on the Columbia river with this state, shall be deemed valid as to gill nets, and as to gill net fishermen, for use on the Columbia river, as though issued by the fish warden of this state. Any person desiring to fish for salmon, sturgeon, or other anadromous fish in any such rivers or waters, may go before any county clerk of any county in this state and furnish satisfactory evidence of his citizenship, or of the fact that he has declared his intention to become such one year prior thereto, and file his own affidavit and the affidavit of two other persons to the effect that he is and has been for six months prior thereto an actual bona fide resident of this state, and thereupon such recorder or clerk shall issue to him a certificate briefly reciting these facts, and thereafter in any prosecution against such person for a violation of the provisions of this act, such certificate or duly authenticated copies of the record in the office of the clerk or recorder relative thereto, shall be prima facie evidence of his citizenship and residence as in this act required. But in all prosecutions under this act the burden of proof shall be on the defendant to establish the facts of his citizenship and residence." L. O. L. § 5298.

It is maintained that the latter enactment, thus attempting to exclude nonresidents of Oregon from the right to take or fish for salmon in the Columbia river with a gill net, violates section 20 of article 1 of the organic act of this state, which reads:

"No law shall be passed granting to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens."

This clause of the fundamental law was evidently designed to protect the rights of citizens of Oregon only. The section of the statute last quoted guarantees to each resident of Oregon, who is also a citizen of the United States, the right to fish for salmon in the waters of this state upon making the required proof and securing the necessary license, and, this being so, there is no discrimination as to such citizens. The evident object of the enactment was to protect Oregon fishermen from men engaged in that business who came to this state when the season opened, pursued their calling, and when the season closed returned to their homes to ply their occupation in other waters, thereby rapidly depleting the supply of a valuable food product which, if properly cared for, could be reasonably conserved to the advantage of resident fishermen. The statute complained of affects alike all persons, possessing the requisite qualifications, who pursue the same business under similar circumstances and conditions, and for that reason it is not class legislation. In re Oberg, 21 Or. 406, 28 P. 130, 14 L. R. A. 577; State v. Randolph, 23 Or. 74; State ex rel. v. Frazier, 36 Or. 178, 59 P. 5; State v. Thompson, 47 Or. 492, 84 P. 476, 4 L. R. A. (N. S.) 480, 8 Ann. Cas. 646; State v. Muller, 48 Or. 252, 85 P. 855; State v. Baker, 50 Or. 381, 92 P. 1076, 13 L. R. A. (N. S.) 1040; Churchill v. City of Albany, 65 Or. 442, 133 P. 632.

It is insisted that section 5298, L. O. L., trenches upon a clause of the fourteenth amendment of the Constitution of the United States in that the statute is an attempt upon the part of the state of Oregon to make a law which, if enforced, would abridge the privileges and immunities of citizens of the United States. Before such privileges can be infringed it must satisfactorily appear that the authority of a person to take and catch salmon in the Columbia river is a right which is guaranteed to, and may be exercised by every citizen of the United States, though he may be a nonresident of the states of Oregon and Washington. The business which is protected from interference by state legislation must be a calling which any person can pursue in any place in...