Vail v. Seaborg

• Decision Date: 11 May 1922
• Docket Number: 17074.
• Citation: 120 Wash. 126,207 P. 15
• Court: Washington Supreme Court
• Parties: VAIL v. SEABORG et al.

207 P. 15

120 Wash. 126

VAIL v. SEABORG et al.

No. 17074.

Supreme Court of Washington, En Banc.

May 11, 1922

Appeal from Superior Court, Skagit County; Augustus Brawley, Judge.

Action by C. S. Vail against E. A. Seaborg and others. Judgment of dismissal, and plaintiff appeals. Affirmed.

Tolman J., dissenting.

Thomas Smith, of Mt. Vernon, and C. E. Abrams and Will J. Griswold, both of Bellingham, for appellant.

Lindsay L. Thompson, of Olympia, for respondents.

HOVEY J.

This is an appeal from a judgment of dismissal, after the sustaining of a demurrer to a complaint, whereby appellant sought to enjoin the respondents from enforcing the rules and orders of the state fisheries board, and particularly certain orders of the respondent board prohibiting the taking of salmon from the waters of Puget Sound from the 26th day of August to the 15th day of September, and from the 26th day of October to the 30th day of the following April, by any fishing appliance or any means whatsoever except with hook and line, and prohibiting the sale and disposal of any salmon which has been so taken.

It is alleged in the complaint that appellant is engaged in the business of fishing for salmon with gill nets in the waters of Puget Sound, and has an investment in the form of fishing boats and appliances devoted to this particular purpose, and that this is his only means of livelihood, and that a great many other citizens of this state are simiarly situated. It is alleged that the enforcing of these orders will deprive the plaintiff and others similarly situated of their means of livelihood.

There are a good many other allegations to the same effect, but we have stated enough to show a sufficient injury if the appellant is in a position to complain.

It is alleged in the complaint, and urged upon the argument, that the orders in question are void because the respondent board which made them was formed and acts by virtue of the provisions of section 108 et seq. of chapter 7 of the Laws of 1921 of this state, being a portion of the act known as the 'Administrative Code.' The portions of chapter 7 relative to this subject-matter are as follows:

'Sec. 108. The food fishes in the waters of the state of Washington shall be preserved, protected, and perpetuated and to that end such food fishes shall not be taken at such times or places, by such means, or in such manner, as will impair the supply thereof.

'Sec. 109. The Governor shall have the power, and it shall be his duty, to appoint three citizens of this state who have a general knowledge of fish and fisheries of the waters of and adjacent to the state of Washington, as members of, and who shall constitute, the state fisheries board to serve at the pleasure of the Governor, and who shall receive their actual and necessary expenses while engaged in the performance of their duties.

'Sec. 110. The state fisheries board shall have the power to investigate the habits, supply, and economic uses of, and to classify, the food fishes in the waters of the state of Washington and, from time to time, make, adopt, amend, and promulgate rules and regulations governing the taking thereof, (1) fixing the times when the taking of the several classes of, and all, food fishes is prohibited, (2) specifying and defining the places and waters in which the taking of the several classes of, and all, food fishes is prohibited, and (3) defining, fixing, and prescribing the kinds of gear, appliances, or other means that may be used in taking the several classes of food fishes, and the times places, and manner of using the same.

'Sec. 111. All laws relating to the matters referred to in the last preceding section are hereby repealed as statutes, and are hereby constituted and declared to be operative and to remain in force as the rules and regulations of the state fisheries board, until such time as they or any of them are amended, modified, or revoked by the state fisheries board: Provided, that holders of existing fishing locations shall hold and enjoy the same with the exclusive right to operate their fishing appliances thereon under the rules and regulations of said board at all times when fishing in the waters where such locations are situated shall be permitted.'

At the same session the Legislature passed an act, the same being chapter 180 of the laws of that session, which contains the following sections:

'Sec. 10. The food fishes in the waters of the state of Washington shall be preserved, protected and perpetuated, and to that end such food fishes shall not be possessed, sold or disposed of at such times as will impair the supply thereof.

'Sec. 11. The state fisheries board shall have the power from time to time to make, adopt, amend and promulgate, in the manner provided by law, rules and regulations governing the possession, disposal and sale of food fishes within the state of Washington, whether taken within or without the state of Washington, fixing the times when the possession, disposal or sale of the several classes of, or all, food fishes is prohibited.'

Prior to the enactment of the statutes in question, there had been in force a great many laws of this state prescribing in considerable detail the operation of the fishing business. It will be noted that by the provisions of section 111 these laws are all repealed, but they are continued as rules and regulations until such time as the new board shall see fit to change the same. The main contention of appellant is that the acts in question constitute a delegation of legislative power, and an able argument is presented to the general effect that the acts in question violate the recognized rule that a Legislature cannot delegate its power to legislate to a board or commission.

The recognized distinction in matters of this kind, however, is between power to legislate and the power to administer. This is well stated in a case cited by appellant, State v. Normand, 76 N.H. 541, 85 A. 899, Ann. Cas. 1913E, 996:

'Congress cannot delegate its power to make a law; but it can make a law and delegate a power to an administrative officer to determine a fact or condition of affairs in regard to which the law makes its own action depend.'

The great increase in the duties of the governing bodies has brought about a demand that matters in which the general public are interested shall be governed in their details to an extent impracticable to be attended to by the legislative bodies which meet only biennially, and statutes of this character are passed to meet the situation. The fact that Legislatures formerly attended to the details does not change the character of such details from that of an administrative character. By section 108 the purpose of the Legislature is declared. It is a well-known fact that the salmon industry of the state is rapidly disappearing, and the Legislature declares its purpose to protect and perpetuate it.

That this is a sufficient act of legislation is supported by the decisions of this court in Cawsey v. Brickey, 82 Wash. 653, 144 P. 938; Spokane Hotel Co. v. Younger, 113 Wash. 359, 194 P. 595; Carstens v. De Sellem, 82 Wash. 643, 144 P. 934; State ex rel. McBride v. Superior Court, 103 Wash. 409, 174 P. 973; State v. Storey, 51 Wash. 630, 99 P. 878; Larsen v. Rice, 100 Wash. 642, 171 P. 1037; and a very persuasive parallel was drawn by the Attorney General of section 108 of this act with section 2 of chapter 174 of the Laws of 1913, the latter being a section of the minimum wage law.

The former acts were an exercise of the police power and dealt with contract rights between individuals. Whether section 108 would be a sufficient act of legislation in all cases we are not called upon to decide in this case.

The food fish in the waters of the state belong to the people of the whole state, and the state through its Legislature has the same right of regulation and control of this property that it has of any other state property. The fact that appellant and others are engaged in the business of taking fish does not give them any property in the fish prior to taking. The right exists in the state in the first place to say whether any fish whatever shall be taken. By the act in question the right to fish is provided for, but only under such regulations as shall be found by a properly constituted board to preserve and perpetuate the supply. We sustained a similar act in Cawsey v. Brickey, 82 Wash. 653, 144 P. 938, relative to the regulation of game by county commissioners. We consider the following cases in point Portland Fish Co. v. Benson, 56 Or. 147, 108 P. 122; Ex parte Fritz, 86 Miss. 210, 38 So. 722, 109 Am. St. Rep. 700; Commonwealth v. Sisson, 189 Mass. 247, 75 N.E. 619, 1 L. R. A. (N. S.) 752, 109 Am. St. Rep. 630; State v. Nelson, 31...