State v. Savage

• Decision Date: 21 October 1919
• Parties: STATE v. SAVAGE.
• Court: Oregon Supreme Court

184 P. 567

96 Or. 53

STATE v. SAVAGE.

Supreme Court of Oregon

October 21, 1919

Department 2.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Norman C. Savage was convicted of having transported two salt-water crabs from Coos county to Portland for sale, and he appeals. Affirmed.

The defendant Norman C. Savage was convicted and fined $25 for having on the 27th day of March, 1919, shipped or transported from Coos county to Portland, for sale, two salt-water crabs taken within said Coos county, and appeals from the judgment of conviction.

L. A. Liljeqvist, of Marshfield, for appellant.

John F Hall, Dist. Atty., of Marshfield (George M. Brown, Atty Gen., on the brief), for the State.

BEAN. J.

A demurrer was filed to the complaint against defendant, which was first filed in the justice's court, from which an appeal was taken by defendant to the circuit court, and it is contended that the statute which the defendant is accused of violating is unconstitutional, as in violation of section 20 of article 1 of the Constitution, which provides:

"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."

An act "to provide for the preservation and protection of salt water crabs within the county of Coos, to regulate the sale and transportation thereof, to prohibit common carriers from conveying the same from said county, and providing penalties for violation of this act," was first enacted by the Legislature in 1905, General Laws of Oregon 1905, p. 312. The first act contained a provision as follows:

"That this act shall not apply to the canning of salt-water crabs within said county or other exportation of the canned product thereof."

The act was amended by chapter 40, General Laws of Oregon 1907, p 52, which is section 5360, L. O. L., and reads as follows "It shall be unlawful for any person within the county of Coos, state of Oregon, or within or upon the waters thereof, including all bays, harbors and inlets of said county, to kill, take, capture or destroy any greater number than fifty salt-water crabs in one day; and it shall be unlawful for any person or persons, firm or corporation within said county or upon the water thereof, to sell or offer for sale, exchange or transport outside of the said county, or have in possession, for the purpose of such sale or exchange or transportation from said county, any of the aforesaid salt-water crabs; and it shall be unlawful for any steamboat company, express company, or any other common carrier, or corporation, or the officers or agents thereof, or any other person, to transport or carry out of said county, or to receive or have in possession for the purpose of such transportation therefrom, any salt-water crabs, except for the purpose of exhibition or propagation: Provided, that this act shall apply to the canning product of salt-water crabs within the said county and the exportation of the same therefrom."

By chapter 16, Gen. Laws of Oregon 1915, p. 31, this section was amended by changing the proviso so as to read:

"That this act shall apply to the canning product of salt-water crabs within the said county and the exportation of the same therefrom, except the operation of any and all crab canneries, factories or the handling, transportation or exporting of the product of any of such canneries as may have been in operation in said county of Coos at the time of the passage of chapter 40, by the legislative assembly of the state of Oregon, in the year 1907, and all that may be in operation on and after January 1, 1917."

In 1917 the Legislature enacted chapter 409, Laws of Oregon 1917, p. 848, amending section 5360 so that it would read the same as above quoted, except that it "provided that this act shall apply to the canning product of salt-water crabs within the said county and the exportation of the same therefrom; provided, that this shall not apply to canneries now in existence until July 1, 1918." It will be seen that the section of the Code as last amended provided that it should not apply to canneries then in existence until July 1, 1918, and that the act of 1915 did not apply to the canning factories, or the transportation or exportation of the product of such canneries as had been in operation in Coos county at the time of the passage of chapter 40 by the legislative assembly in 1907, and that might be in operation on and after January 1, 1917. Section 2 of the act of 1905, and the same number of section of the act of 1907 which is section 5361, L. O. L., provides that any person violating any of the provisions of the act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $25 or more than $500, together with costs, and in default of the payment of such fine shall be imprisoned one day for every $2 thereof.

It will be noticed that a person engaged in the cannery business would have the privilege of catching any number of salt-water crabs, and transporting the same beyond the limits of the county of Coos for the purposes of sale, without violating the terms of the statute, while other citizens doing the same thing, in substantially the same manner, would be subject to a penalty or imprisonment.

The general rule is that no one may be subject to any greater burdens and charges than are imposed on others in the same calling or condition or in like circumstances, and no burden can be imposed on one class of persons, natural or artificial, which is not, in like conditions, imposed on all other classes. A statute infringes this guaranty if it singles out for discriminatory legislation particular individuals not forming an appropriate class, and imposes upon them burdens or obligations, or subjects them to rules, from which others are exempt.

If the statute applies only to one class of persons, and imposes upon them duties not common to others, there must exist in the relations to such persons to the state, to the public, or to individuals some reasonable ground of distinction sufficient to show that the classification is not merely personal and arbitrary, else there will be a denial of the equal protection of the law. 6 R. C. L. p. 403, § 398; Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Cotting v. Kansas City Stock Yards Co., 183 U.S. 79, 22 S.Ct. 30, 46 L.Ed. 92; State v. Richcreek, 167 Ind. 217, 77 N.E. 1085, 5 L. R. A. (N. S.) 874, 119 Am. St. Rep. 491, 10 Ann. Cas. 899; In re Opinion of Justices, 207 Mass. 601, 94 N.E. 558, 34 L. R. A. (N. S.) 604; Boone v. State, 170 Ala. 57, 54 So. 109, Ann. Cas. 1912C, 1065; Stratton Claimants v. Morris Claimants, 89 Tenn. 497, 15 S.W. 87, 12 L. R. A. 70; Nitka v. Western Union Tel. Co., 149 Wis. 106, 135 N.W. 492, 49 L. R. A. (N. S.) 337, Ann. Cas. 1913C, 863.

The general principle seems to be that if legislation, without good reason and just basis, imposes a burden on one class which is not imposed on others in like circumstances or engaged in the same business, it is a denial of the equal protection of the laws to those subject to the burden and a grant of immunity to those not subject to it. Particular laws, granting special privileges and immunities, must run the gauntlet of both the provisions of the Fourteenth Amendment to the federal Constitution, which secures the equal protection of the laws, and those of the state Constitutions, which prohibit the enactment of special laws granting privileges and immunities. The tests, as to both, are substantially similar. Also the inherent limitations on legislative power may themselves be sufficient to nullify such laws. The provisions of the state constitution are the antithesis of the Fourteenth Amendment, in that they prevent the enlargement of the rights of some in discrimination against the rights of others, while the Fourteenth Amendment prevents the curtailment of rights. 6 R. C. L. § 400, p. 406; 12 C.J. § 827, p. 1111; Cooley's Const. Lim. p. 561 et seq.; State v. Nashville, etc., R. Co., 124 Tenn. 1, 135 S.W. 773, Ann. Cas. 1912D, 805.

There is no question but that crabs are fish, and the law applicable thereto applies. 19 Cyc. 987; 35 Cyc. 1454.

The title to migratory fish, feræ naturæ, while in a state of freedom, so far as a right of property can be asserted, is in the state, not as a proprietor, but in its sovereign capacity for the benefit of and in trust for citizens of the state in common. State v. Hume, 52 Or. 1, 5, 95 P. 808; State v. Catholic, 75 Or. 367, 147 P. 372, Ann. Cas. 1917B, 913; Portland Fish Co. v. Benson, 56 Or. 147, 154, 108 P. 122.

No good reason is suggested or can be conceived that in the protection of fish a portion of the people should be subject to prosecution and punishment for the catching or transportation for mercantile purposes of salt-water crabs taken in Coos county, while another class of persons operating canneries should have the exclusive privilege of taking and shipping the same kind of fish beyond the limits of the county for the purposes of sale. The act of 1915 and that of 1917 clearly grants a special privilege or monopoly to those engaged in the cannery business without any good reason therefor, and is discriminatory class legislation, and repugnant to article I, § 20, of the Constitution and void. Monroe v. Withycombe, 84 Or. 328, 336, 165 P. 227; Hume v. Rogue River Packing Co., 51 Or. 237, 259, 83 P. 391, 92 P. 1065, 96 P. 865, 31 L. R. A. (N. S.) 396, 131 Am. St. Rep. 732; Eagle Cliff Fishing Co. v McGowan, 70 Or. 1, 15, 137 P. 766; Jones v. Union County, 63 Or. 566, 574, 127 P. 781, 42 L. R. A. (N. S.) 1035; State v. Wright, 53 Or. 344, 348, 100 P....