State v. Tice

• Decision Date: 29 July 1912
• Citation: 125 P. 168,69 Wash. 403
• Court: Washington Supreme Court
• Parties: STATE v. TICE.

125 P. 168

69 Wash. 403

STATE v. TICE.

Supreme Court of Washington

July 29, 1912

Department 1. Appeal from Superior Court, Pacific County; Sol Smith Judge.

Charles Tice was convicted of illegal fishing, and appeals. Affirmed.

Chas E. Miller and John A. Homer, both of South Bend, for appellant.

Robt. G. Chambers, of Raymond, for respondent.

PARKER J.

The defendant was convicted in the superior court of the offense of fishing for and taking salmon from the waters of Willapa Harbor on August 10, 1911, during the closed season, in violation of the law relating to the taking of food fishes providing, among other things, as follows: 'It shall be unlawful to take or fish for salmon in the waters of Willapa Harbor or its tributaries from the 15th day of March to the 15th day of April, and the 1st day of August to the 1st day of September and from the 5th day of December to the 5th day of January in each year.' Laws 1911, p. 496. He has appealed to this court relying for a reversal of the judgment rendered against him upon his claim of the unconstitutionality of this law.

Counsel for appellant contend, in substance, that the classification of the waters of the state by the law, for the regulation of the taking of food fishes, is arbitrary and unreasonable; that the law deprives him of liberty and property without due process of law; and that the law denies to him equal protection and privileges with others. Counsel for appellant seem to proceed upon the theory that some inherent privilege or property right belonging to him is attempted to be invaded by this law. Let us first notice the real nature of the right of appellant which it is said this law curtails. The decisions of the courts in this country so far as they have come to our notice are all in nuison in holding that there is no private right in the citizen to take fish or game except as such right is either expressly or inferentially given by the state. In State v Snowman, 94 Me. 99, 46 A. 815, 50 L. R. A. 554, 80 Am. St. Rep. 380, the court said: 'The fish in the waters of the state, and the game in its forests, belong to the people of the state, in their sovereign capacity, who, through their representatives, the Legislature, have sole control thereof, and may permit or prohibit their taking.' In Smith v. State, 155 Ind. 611, 58 N.E. 1044, 51 L. R. A. 404, the court said: 'The individual has no natural right to take game, or to acquire property in it, and all the right he possesses or can possess in this respect is granted him by the state.' In Ex parte Maier, 103 Cal. 476, 37 P. 402, 42 Am. St. Rep. 129, this view is expressed in equally strong language as follows: 'The wild game within a state belongs to the people in their collective, sovereign capacity; it is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or any traffic or commerce in it, if deemed necessary for its protection or preservation, or the public good.' Among the numerous authorities which might be cited in support of this view, the following may be noted: Magner v. People, 97 Ill. 320; State v. Hume, 52 Or. 1, 95 P. 808; Sherwood v. Stephens, 13 Idaho, 399, 90 P. 345; Hornbeke v. White, 20 Colo. App. 13, 76 P. 926; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793.

The doctrine of these holdings renders it plain that no private right or privilege of the appellant is invaded by this law unless, as he contends, it grants privileges to others which are withheld from him. So far as the law relates to the right to fish in the waters of Willapa Harbor, it could hardly be seriously argued that there is any granting or withholding of privileges except as to all people upon exactly the same terms and conditions. Appellant...