Union Fishermen's Co-operative Packing Co. v. Shoemaker

• Decision Date: 16 November 1920
• Citation: 98 Or. 659,193 P. 476
• Parties: UNION FISHERMEN'S CO-OPERATIVE PACKING CO. ET AL. v. SHOEMAKER. [a1]
• Court: Oregon Supreme Court

193 P. 476

98 Or. 659

UNION FISHERMEN'S CO-OPERATIVE PACKING CO. ET AL. v. SHOEMAKER. ^[a1]

Supreme Court of Oregon

November 16, 1920

Department 1.

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

Suit by the Union Fishermen's Co-operative Packing Company and others against Carl D. Shoemaker, as the duly appointed qualified, and acting master fish warden of the state of Oregon, to restrain the enforcement of a section of the Fish Law of Oregon. From a decree dismissing the amended complaint of the suit, plaintiffs appeal. Affirmed.

The Union Fishermen's Co-operative Packing Company and five other Oregon corporations own and operate in Oregon large salmon canneries at or near the mouth of the Columbia river. The defendant Carl D. Shoemaker was, at the time of the commencement of this suit, the game warden and master fish warden of the state of Oregon, and it was his official duty to enforce the game and fish laws of this state.

Several thousand fisherman are engaged in catching salmon fish with which to supply the canneries operated by the plaintiffs. A considerable number of these fishermen are employés of the plaintiffs, while the remaining fishermen, although not employés of the plaintiffs, fish for the purpose of selling their catches to the plaintiffs. Many millions of dollars have been invested by the plaintiffs in canneries and in boats, nets, and other fishing gear, "for the purpose of catching, packing, freezing, canning, and preserving salmon fish;" and the complaining corporations enjoy "a large and lucrative business resulting from the sale freezing, packing, and canning of such salmon fish."

The amended complaint gives an account of the fish legislation enacted in the states of Oregon and Washington in the years 1915, 1917, and 1919. Among the measures enacted by the Oregon Legislative Assembly is chapter 367, Laws 1919; and section 5 of that enactment is the storm center of this litigation. Section 5 of chapter 367, Laws 1919, reads as follows:

"It shall be unlawful for any person to purchase, or offer for sale, any food fish of any variety unlawfully taken from any of the waters of this state, or from any of the waters over which the state of Oregon has concurrent jurisdiction or to have in their possession or to purchase or offer for sale, any salmon fish of any variety taken beyond the three mile line outside of the Columbia river between the following dates, which are closed seasons in the waters of the Columbia river within the state of Oregon, and over which the state of Oregon has concurrent jurisdiction, to wit: Between 12 o'clock, noon, March first, and 12 o'clock, noon, May first, and between 12 o'clock noon, August twenty-fifth, and 12 o'clock, noon September tenth, of any year."

The plaintiffs allege that, because of reasons specified by them section 5 is ineffective and inoperative; and the plaintiffs further aver that, since section 5 is inoperative, "these various plaintiffs herein, through fishermen employed for such purpose, have signified their intention, and are about to engage in the catching of salmon fish beyond the three-mile line outside of the Columbia river, and in the purchase from said fishermen for the operation of their canneries at or near the mouth of the Columbia river of salmon fish caught beyond the three-mile line outside of the Columbia river," but that the defendant has threatened to, and unless restrained "will, arrest any and all persons so engaged in catching such salmon fish beyond the three-mile line outside of said Columbia river, and these plaintiffs, in the event these plaintiffs should purchase of such fishermen for the operation of their canneries at or near the mouth of the Columbia river any salmon fish caught beyond the three-mile line outside of said Columbia river, which said arrests would greatly harass and embarrass these various plaintiffs in the operation of their respective canneries at or near the mouth of the Columbia river, and would prevent these plaintiffs from at all operating their said respective canneries at or near the mouth of the Columbia river, resulting in great financial loss to these plaintiffs, the exact amount of which it would be impossible to estimate." The amended complaint concludes with a prayer for a decree, restraining the defendant from attempting to enforce section 5 of chapter 367, Laws, 1919.

The trial court sustained a demurrer to the amended complaint, and, upon the refusal of the plaintiffs to plead further, a decree was entered, dismissing the amended complaint and the suit. The plaintiffs appealed.

Subsequent to the rendition of the decree in the circuit court, the Legislative Assembly abolished the office of game warden and master fish warden, and the duties, so far as they are material here, which had been exercised by that officer, were transferred to and imposed upon a fish commission provided for by chapter 1, Laws Sp. Sess., 1920. Chris Schmidt, Frank M. Warren, and Charles Hall were selected and qualified as members of the fish commission, and for that reason the litigants stipulated that the commissioners should be substituted as defendants.

A. W. Norblad, of Astoria (Norblad & Hesse, of Astoria, on the brief), for appellants.

J. O. Bailey, Asst. Atty. Gen. (Geo. M. Brown, Atty. Gen., and J. J. Barrett, Dist. Atty., of Astoria, on the brief), for respondent.

HARRIS, J. (after stating the facts as above).

The questions to be decided can be better considered and discussed if we first give an account of the fish legislation, affecting the Columbia river, enacted in the states of Oregon and Washington in the years 1915, 1917, and 1919. In 1915, conference committees were appointed by the Legislative Assemblies of the two states, with the view of agreeing upon fish legislation concerning the Columbia river and other waters. The conference committees met and discussed proposed legislation, and as a result the Legislative Assembly of Oregon passed a "new Fish Code" providing for the regulation of the taking of salmon from the waters of the Columbia river, over which the states of Oregon and Washington have concurrent jurisdiction, and from other waters within the boundaries of the state of Oregon. This "new Fish Code" is also known as chapter 188, Laws 1915; and section 20, the material section here of the chapter, reads as follows:

"Should Congress, by virtue of the authority vested in it under section 10, article one of the Constitution of the United States, providing for compacts and agreements between states, ratify the recommendations of the conference committees of the states of Oregon and Washington, appointed to agree on legislation necessary for the regulation, preservation and protection of fish in the waters of the Columbia river, over which said states have concurrent jurisdiction, and other waters within either state, which would be affected by said concurrent interest, recommendation being as follows:

" 'We further recommend that a resolution be passed by the Legislatures of Washington and Oregon, whereby the ratification by Congress of the laws of the states of Oregon and Washington shall act as a treaty between said states, subject to modification only by joint agreement by said states;' and said recommendation having been approved by resolution adopting the report of the conference committee, then, and in that event, there shall exist between the states of Oregon and Washington a definite compact and agreement, the purport of which shall be substantially as follows:

"All laws and regulations now existing, or which may be necessary for regulating, protecting or preserving fish in the waters of the Columbia river, over which the states of Oregon and Washington have concurrent jurisdiction, or any other waters within either of said states, which would affect said concurrent jurisdiction, shall be made, changed, altered and amended in whole or in part, only with the mutual consent and approbation of both states."

In 1915, the Legislative Assembly of Washington enacted a "Fisheries Code." This Code appears as chapter 31, Laws of Washington 1915. Section 116, the material section here, is as follows:

"Should Congress, by virtue of the authority vested in it under section 10, article 1, of the Constitution of the United States, providing for compacts and agreements between states, ratify the recommendations of the conference committees of the states of Washington and Oregon, appointed to agree on legislation necessary for the regulation, preservation and protection of fish in the waters of the Columbia river, or its tributaries, over which said states have concurrent jurisdiction, or which would be affected by said concurrent jurisdiction, said recommendation being as follows: 'We further recommend that a resolution be passed by the Legislatures of Washington and Oregon, whereby the ratification by Congress of the laws of the states of Washington and Oregon shall act as a treaty between said states, subject to modification only by joint agreement by said states;' and said recommendation having been approved by resolution adopting the report of the conference committee, then, and in that event, there shall exist between the states of Washington and Oregon a definite compact and agreement, the purport of which shall be substantially as follows:

"All laws and regulations now existing or which may be necessary for regulating, protecting or preserving fish in the waters of the Columbia river, or its tributaries, over which the states of Washington and Oregon have concurrent jurisdiction, or which would be affected by said concurrent jurisdiction, shall be made, changed, altered and amended in whole or in part, only with the mutual consent and approbation of both states."

...