State v. Schmidt

• Decision Date: 18 March 1924
• Docket Number: 18315.
• Citation: 128 Wash. 661,223 P. 1057
• Court: Washington Supreme Court
• Parties: STATE v. SCHMIDT et al.

223 P. 1057

128 Wash. 661

STATE v. SCHMIDT et al.

No. 18315.

Supreme Court of Washington

March 18, 1924

Department 1.

Appeal from Superior Court, Pacific County; Hewen, Judge.

A. G Schmidt, John Bakovich, Andrew Jasper, and Paul Luketa were convicted of the misdemeanor of fishing with a purse senie in violation of rules and regulations of the state fisheries board, and they appeal. Reversed, and action dismissed.

Van C Griffin, of Seattle, for appellants.

John I O'Phelan, of Raymond, and A. D. Gillies, of South Bend for the State.

MACKINTOSH J.

The appellants were convicted of the misdemeanor of fishing for salmon with a purse seine in the Pacific Ocean within three miles of the shore of Pacific county, the information charging that the defendants violated 'the rules, orders and regulations of the state fisheries board.' The defendants demurred to the information, and at the end of the state's case demurred to the evidence and moved that the action be dismissed and that a verdict of not guilty be directed, and have preserved their exception to the court's having taken judicial notice of the rules, orders, and regulations of the state fisheries board, they not having been pleaded or proved.

The only error necessary for consideration is that the court was in error in taking judicial notice of the rules and regulations of the state fisheries board. This court, in Vail v. Seaborg, 120 Wash. 126, 207 P. 15, held that a delegation by the Legislature to the state fisheries board of the right to promulgate rules and regulations governing the taking of food fish was proper. The question is whether the court can take judicial notice of the rules and regulations promulgated by the state fisheries board in pursuance of this authority or whether they should be pleaded and proof made of their existence. Authorities are cited by the appellants to the effect that state courts will not take judicial notice of the existence of rules, orders, and regulations of state executive officers, commissions, departments, and boards, and of the ordinances of municipalities. Josh et al. v. Marshall, 33 A.D. 77, 53 N.Y.S. 419; Stephens v. Anderson, 75 Fla. 575, 577, 79 So. 207; Childs v. State, 16 Ala. App. 392, 78 So. 308; State v. Kusick, 148 Minn. 1, 180 N.W. 1024; Oliver v. State, 16 Ala. App. 533, 79 So. 313; People v. Dalton, 46 A.D. 264, 61 N.Y.S. 263; State v. Allyn, 150 Minn. 123, 184 N.W. 787. To the contrary have been cited decisions holding that federal courts will take judicial notice of federal rules and regulations. This was the holding in Jones v. United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691. In Caha v. United States, 152 U.S. 221, 14 Supp. Ct. 513, 38 L.Ed. 415, the Supreme Court of the United States established the rule which it made applicable in federal courts. So far as our investigation goes, no state court has ever laid down a similar rule as to judicial notice by state courts of rules, orders, regulations, and ordinances of state executive officers, commissions, departments, and boards or of the ordinances of municipalities. Nor has the case of Caha v. United States, supra, escaped criticism even in the federal courts, for we find in Nagle v. United States, 145 F. 302, 76 C. C. A. 181, the Circuit Court of Appeals for the Second Circuit saying:

'Reference is made to the regulations of the post office, and some sections thereof are printed in the brief, but none of them are set forth in the record. The decisions of the Supreme Court on the subject of judicial notice of such rules and regulations are not entirely uniform. Caha v. U. S., 152 U.S. 221; * * * The E. A. Packer, 140 U.S. 367. * * * Where there is some questions of statute law, where the court can itself by reference to books with which it is familiar, and which each judge possesses, determine just what statutory provisions were in force at a given date, there is no necessity for incumbering the record with them. But it is different with departmental regulations. No department ever sends its compilation of regulations to the judges. They are frequently amended, and, without special information from the department, no one can tell whether a particular regulation in some printed compilation was in force a year later. It is grossly unfair to a trial judge to cite some regulation upon a brief on appeal which was not laid before him on the trial. We have no doubt that it is far better practice to read any special regulations which may be relied upon into the record before the trial court. It is a hopeless task for an appellate court to determine what such regulations were at any particular time.'

In the Clara, 55 F. 1021, 5 C. C. A. 390, The H. B. Rawson, 162 F 312, 89 C. C. A. 20, and The E. A. Packer, 140 U.S. 360, 11 S.Ct. 794, 35 L.Ed. 453, supra, courts of admiralty refused to take judicial notice of the rules and regulations of the supervising inspector and lighthouse boards, so that we find the federal courts are not in entire accord on this subject, recognizing that it is very dangerous and unsound procedure to allow courts to take judicial notice of such matters, and especially so in these later years, when executive departments, commissions, boards, and officers are so...