State v. Darwin

• Decision Date: 01 August 1914
• Docket Number: 11815.
• Citation: 142 P. 441,81 Wash. 1
• Court: Washington Supreme Court
• Parties: STATE ex rel. PACIFIC AMERICAN FISHERIES et al. v. DARWIN, State Fish Com'r.

142 P. 441

81 Wash. 1

STATE ex rel. PACIFIC AMERICAN FISHERIES et al. v. DARWIN, State Fish Com'r.

No. 11815.

Supreme Court of Washington

August 1, 1914

Department 2. Mandamus on the relation of the Pacific American Fisheries and another against Lester H. Darwin, State Fish Commissioner. Application denied.

Kerr & McCord, of Seattle, for petitioners.

Frank W. Bixby, of Bellingham, for respondent.

FULLERTON J.

This is an original application for a writ of mandamus. The affidavit on which the application for the writ is founded, is as follows:

'I. E. S. McCord, being first duly sworn, on oath deposes and says: That he is a member of the firm of Kerr & McCord attorneys for the petitioners above named; that he makes this affidavit and application for a writ of mandamus and prohibition for and on behalf of said petitioners.

'II. That Lester H. Darwin is now, and at all the times hereinafter mentioned has been, the duly appointed qualified, and acting fish commissioner of the state of Washington, and that said Lester H. Darwin, as such fish commissioner, is an officer of the state of Washington.

'III. That the petitioners are engaged in the catching canning, salting, smoking, freezing, and curing of fish caught within the waters of the state of Washington. That the Pacific American Fisheries, under the provisions of the laws of the state of Washington, operates a fish trap for the purpose of catching salmon and other food fishes within the waters of this state, and sells and disposes of the fish so caught in its trap and fishing appliances to other parties. That it also operates a fish trap leased to it by the owner and holder of such fish trap or fishing location, held by such owner under a license issued to such owner by the fish commissioner of the state of Washington. That some of the fish caught at the trap owned by it, and some of the fish caught by it at the trap which it has so leased, it cans salts, cures, and otherwise preserves, and some of said fish from such trap so operated and so leased it sells in the form in which they are taken from the trap to third parties. That the Pacific American Fisheries also purchases fish from other holders, owners, and operators of trap locations and other fishing appliances, and a part of the same it cans and packs in its canneries operated in the state of Washington, and some of the fish so purchased it sells as fresh fish in the form in which they are purchased or caught in its trap or in the trap leased by it. That it also freezes and sells fish bought or caught by it in its own trap or in its leased trap. That it also smokes, cures salts, and freezes and sells fish in such preserved form caught by it from its own trap and caught by it from its leased trap, and also sells in such preserved from fish purchased by it from the owners and operators of fish traps, and also sells in such preserved form fish caught by purse seiners, and other operators of seines, and sold by such purse seiners and other operators of seines to it. That it also packs and cans in tin cans at its canneries fish bought by it from seiners and bought by it from trap owners, and caught by it in its own trap, and caught by it in a trap leased to it, and that it buys fish from trap owners and seiners and sells the same to other cannerymen, who pack such fish so sold in tin cans at the canneries of such purchasers. That the Pacific American Fisheries pays the annual license fee for its trap location, and pays the license fee of $1 per thousand upon all fish caught by it in its trap; that the owners of the fish trap leased also pay the license fee required by law for maintaining their trap, and also pay the license fee of $1 per thousand upon all fish caught in said trap.

'IV. That the Swift-Arthur-Crosby Company operates a plant for preserving, freezing, and selling fish in the state of Washington, and, in addition to purchasing fish caught within the waters of the state of Washington, also purchases fish in the territory of Alaska and in British Columbia, and brings the same into the state of Washington and sells the same in the form in which they are brought in, that is, in a frozen or iced condition. That the said Swift-Arthur-Crosby Company also brings in fish partially iced, and preserves them in other forms and sells and disposes of the same in the state of Washington. That some of the fish handled by it are frozen in British Columbia or Alaska, and brought into the state of Washington under its direction in a frozen form and sold in the same form. That it also acts as the agent of other parties in preserving, selling, and disposing of salmon caught beyond the boundaries of the state of Washington and brought within the state of Washington, and acts as the agent of the owners of such salmon, but is not otherwise interested in the salmon, except as agent, and that the persons for whom it acts as agent pay the license or tax for catching and preserving said salmon under the laws of Alaska, and also pay all the taxes or license fees of the state of Washington for which they are legally liable. That the petitioner in this paragraph named also buys, preserves, and sells salmon and food fishes caught both within the state of Washington and in Alaska and sold by such takers of salmon to a third party and by such third party sold to this petitioner. In other words, this petitioner acts as a successive dealer in such fish after said fish have been once caught, bought by, and sold to other parties.

'V. That your petitioners are interested as dealers in fish and as cannerymen, trap owners, lessees of traps, and seiners, and are interested in the conservation, protection, and preservation of the fishing industry in the state of Washington. That the petitioner Swift-Arthur-Crosby Company is a citizen, resident, and taxpayer of the state of Washington, and that the Pacific American Fisheries is a corporation organized under the laws of the state of Maine, and authorized to do business under the laws of the state of Washington, and is the owner of property and a taxpayer in the state of Washington, and is interested in the enforcement of the laws of the state of Washington regulating the fishing industry in all of its branches, and is interested in causing to be collected and paid to the fish commissioner, and thence covered into the treasury of the state of Washington, all sums to which said fish commissioner and the state of Washington are legitimately entitled to receive from all parties engaged in the fishing business in any and all of its branches.

'VI. That the fishing industry of the state of Washington is regulated and controlled by the provisions of the laws of the state of Washington, and that such provisions of the laws of the state of Washington provide for the collection of various license fees and charges, which are intended by said laws to furnish a fund for the protection, propagation, and expansion of the fishing industry and to furnish a revenue for the erection, construction, and maintenance of fish hatcheries upon the various rivers of the state of Washington. That in order that such fishing industry may be properly protected and maintained, it is necessary that all persons, firms, and corporations liable for license fees should pay such fees promptly from time to time as they become due to the fish commissioner of the state of Washington. That the Legislature of the state of Washington at its biennial sessions appropriates for the protection, regulation, and preservation of the fishing industry and for the maintenance of its hatcheries large sums of moneys out of the state treasury, but that such appropriations are measured by the estimated amount of revenue that will be collected during the biennial period by the fish commissioner from the various licensees in the state of Washington who are engaged in the fishing industry.

'VII. That if for any reason the fish commissioner should fail to collect the amount of the license fees to which he is entitled under the law, and the revenues thus collected by him bethus depreciated and diminished, then the general appropriation made by the Legislature will be, according to precedent, reduced by the amount of such diminution or depreciation in the revenues so collected by the fish commissioner; that these petitioners, by reason of their interest as taxpayers, and by reason of their special interest in the fishing industry, and by reason of their interest in the preservation and protection of the same, and by reason of their interest in the maintenance of hatcheries, are specially interested in having the fish commissioner receive from all persons engaged in the fishing business in any and all of its branches the amount by way of license fees that they legitimately owe to the state of Washington or to said fish commissioner.

'VIII. That in the year 1899 the Legislature of the state of Washington passed an act entitled: ' An act providing for the protection and propagation of the food fishes in the waters of the state of Washington, regulating the catching and sale thereof, establishing licenses, fixing penalties, repealing conflicting laws, and declaring an emergency.' That section 7 of said Act is as follows: 'Every person, firm or corporation engaged in the business of buying, and selling, packing and preserving or otherwise dealing in salmon, other than canners thereof, shall pay as a license the sum of thirty cents per ton gross weight or in the round of said fishes bought and sold, packed or preserved, or otherwise dealt in: Provided: No person engaged in the business aforesaid shall pay less than $2.50 per annum. It shall be the duty of each person, firm or corporation affected by the provisions of this section to render to the fish commissioner of the

...