Petition for Writ of Certiorari — Frach v. Schoettler

INDEX

Page

BR ee ay tome ins HENLE 1

ERIE SRE TRON oR rae erat GE ei LER Me caer eT 2

I ae 2

ig RUSE SERS EOP AY a nr vances glee BR 4

How Federal Question Is Presented................................. 4

I eee te 6

Rearons for Granting the Writ.......................................... 8

i a 8 ag a a 11

Appendix A—Statute Involved 22.0.2... ceccceeeceeeeeee ee 12

Appendix B— Administrative Order of State Fisheries

MINN sietivhiscthebe Soleaiiie wiidudbinebanceccniack ca cite eae 18

Appendix C— Opinion Below ...00..............0.-ccccccccccccceeeceeees 21

Appendix D—Petition for Rehearing... 3

Appendix E—Order Denying Petition for Rehearing...... 36

Appendix F— Washington Court Rule as to Petitions for

oe ce EN RONEN MOTTE NENC WELD N TR woe CMI A 56

CITATIONS

Cases:

New York ex rel. Silz v. Hesterberg, 211 U.S. 31,

att. & & £8 Cee 9, 10

Wiggins Ferry Co. v. East St. Louis, 107 U.S.

365, 27 L. Ed. 419, 2 S. Ct. 257... 9, 10

U.S. Constitution:

SS | RSE S eee era 3, 4, ., 8, 9, 10

at %, Gee. K.............. oa 38, 4, 7, 8, 9, 10

14th Amendment, Sec. 1............................... 3, 4, 7, 8, 10

Federal Statute:

28 U.S.C. 1257(3) ............ 2

State Statute:

Chap. 147, Laws of 1953

k 2

IN THE

SUPREME COURT

OF THE UNITED STATES

CLARENCE FRACH, et al., i

Petitioners,

VS.

ROBERT J. SCHOETTLER, as Director of ‘No...

the Department of Fisheries of the

State of Washington, et al.,

Respondents.

Petition for a Writ of Certiorari to

the Supreme Court of the

State of Washington

Petitioner prays that a writ of certiorari issue

to review the judgment of the Supreme Court of the

State of Washington, entered and become final in

the above-entitled cause on April 20, 1955.

CITATIONS TO OPINIONS BELOW

The opinion of the Supreme Court of the State

of Washington, as printed in Appendix C hereto, infra,

p. 21, is reported in Vol. 146, Washington Decisions,

page 265, not yet appearing in the official Washing-

were a

ton Reports or in the Pacific Reporter. The order of

the said Supreme Court denying petition for rehear-

ing, as printed in Appendix E hereto, infra, p. 36,

is reported in Vol. 146, Washington Decisions, page

4438, not yet appearing ‘in the official Washington Re-

ports or in the Pacific Reporter.

JURISDICTION

The opinion of the Supreme Court of the State

of Washington was filed with the clerk of said court

on March 10, 1955 (R. 61), and became a final judg-

ment on April 20, 1955, when a timely (see Wash-

ington Rule of Court No. 50, as printed in pertinent

part in Appendix F hereto, infra, p. 36) petition for

rehearing, filed on April 8, 1955 (R. 71), as printed

in pertinent part in Appendix D hereto, infra, p. 33,

was denied (R. 82). The jurisdiction of this court

is invoked under 28 U.S.C., section 1257 (3), since there

is drawn in question the validity of a state statute on

the ground of repugnance to certain provisions of the

Federal Constitution.

QUESTIONS PRESENTED

1. Whether a state-imposed tax upon vessel and

crew members catching salmon beyond the territorial

waters and transporting such salmon through terri-

torial waters for delivery to domestic ports, which

tax is not applicable (1) to vessels and crew members

catching salmon within certain of the territorial

2

waters, i.e., in such shore waters as bays, inlets,

canals, coves, sounds and estuaries; and (2) to ves-

sels other than the catching vessel in which such

salmon might be brought into and through the terri-

torial waters, is not in the ultimate an impost or duty

upon imports within the inhibitions of sections 8 and

10, Article I of the Federal Constitution, reserving to

the Congress the power to lay and collect imposts or

duties and to regulate interstate and foreign com-

merce and restricting the power of the states to lay

imposts or duties on imports.

2. Whether a state statute which, in rendering

unlawful the transportation through territorial waters

of the state during certain seasons of salmon caught

by a domestic vessel beyond such territorial waters,

discriminates in favor of such salmon transported

through such territorial waters during the same sea-

sons by other than catching vessels should be upheld

against the inhibitions of section 1 of the 14th Amend-

ment to the Federal Constitution, that no state law

shall abridge the immunities and privileges of United

States citizens, and that no state shall deprive any

person of property without due process of law, nor

deny to any person within its jurisdiction the equal

protection of the law.

8. Whether a state statute, which discriminates in

favor of possession of salmon caught in certain terri-

3

torial waters of the state by rendering unlawful dur-

ing certain seasons the possession of salmon caught

beyond the territorial waters of the state, should be

upheld against the constitutional inhibitions avove

mentioned.

STATUTE INVOLVED

The statutory provisions involved are sections 1

to 12, inclusive, of chapter 147, Laws of Washington

of 1953. They are printed in Appendix A hereto,

infra, p. 12.

HOW FEDERAL QUESTION IS PRESENTED

The petitioners herein originally brought this

action as plaintiffs against the Washington state

director of fisheries and others, alleging in their com-

plaint that the said director’s enforcement of said

Chapter 147, Laws of 1953, as printed in Appendix A

hereto, infra, p. 12, and of his own administrative

order thereunder, as set forth in the complaint and

so printed in Appendix B hereto, infra, p. 18, among

others, violated sections 8 and 10, Article I, and the

14th Amendment to the United States Constitution.

The trial court sustained a demurrer to said com-

plaint. The Supreme Court of the State of Wash-

ington, by opinion printed in Appendix C hereto,

infra, p. 21, affirmed the trial court, specifically

holding the legislation and the administrative order

4

thereunder valid against the above-mentioned consti-

tutional provisions. The petition for rehearing (See

Appendix D, infra, p. 33) specifically elaborated pe-

titioners’ complaint, among others, along the lines

presented in this Petition for Certiorari (R. 72,73),

and the said petition for rehearing was thereafter

by said Supreme Court denied without comment.

STATEMENT OF THE CASE

The petitioners herein are one hundred thirty-two

commercial salmon trollers, each a citizen of Wash-

ington state, operating his own fishing vessel, and

engaged in the business of catching, dressing and icing

salmon exclusively beyond the territorial waters of

the state, that is in the waters of the Pacific Ocean

more than three miles beyond the shores of the states

of Washington, Oregon and California and of the

Province of British Columbia in the Dominion of

Canada—no salmon or other fish being caught within

Washington territorial waters. Salmon so caught,

dressed and iced, without comminglement with any

fish taken in Washington territorial waters, is trans-

ported in the catching vessel through said territorial

waters for sale and delivery in Washington ports.

The statute involved purports to be an exercise

of the state’s police power looking to conservation of

the salmon resource. It creates two fisheries districts,

District No. 1 comprising the Straits of Juan de Fuca

and the waters of the Pacific Ocean over which the

state has jurisdiction, exclusive of bays, inlets, canals,

coves, sounds and estuaries, and District No. 2 com-

prising all lands and waters over which the state has

jurisdiction, excepting therefrom District No. 1

(Section 2—See Appendix A, infra, p. 13). The

statute forbids the commercial taking of fresh silver

6

and chinook salmon from District No. 1 during cer-

tain seasons of the year (Sections 3 and 4—See Ap-

pendix A, infra, p. 14), and makes it unlawfvl for

any person for commercial purposes to have in pos-

session or to transport through the waters of District

No. 1 any fresh silver or chinook salmon taken either

from District No. 1 or from the waters of the Pacific

Ocean during such seasons (Sections 5 and 6—See

Appendix A, infra, p. 14). The statute also pro-

vides that every person operating a fishing vessel

used in taking chinook or silver salmon in off-shore

waters which transports the same through the waters

of the state and delivers them in any port or place

in the State of Washington shall obtain an annual

permit from the director of fisheries at a fee of $10.00

for the vessel and $10.00 for each crew member

(Section 9 — See Appendix A, infra, p. 15). Finally

the statute invests the director of fisheries with regu-

latory powers (Section 11—See Appendix A, infra,

p. 16).

Petitioners commenced their action below by a

complaint setting forth two separate causes of action.

The first sought a judgment adjudicating the permit

requirement of the statute void and unconstitutional,

among other things, in the light of sections 8 and 10,

Article I, and of section 1 of the 14th Amendment

to, the Federation Constitution. The second sought

an order restraining the defendants from enforcing

any of the statutory provisions against petitioners, on

the ground that the statute violated the provisions of

sections 8 and 10, Article I, and of section 1, the 14th

Amendment to, the Federal Constitution.

A general demurrer having been sustained as to

each cause of action by the trial court, and judgment

rendered accordingly, an appeal was taken to the

Washington Supreme Court, which latter then sus-

tained the judgment below. A timely petition for

rehearing, having been filed, was by the said court

denied without comment.

REASONS FOR GRANTING WRIT

1. As TO QuESTION No. 1 hereinabove presented

To the extent that the instant legislative act

purports, under the guise of a conservatory police

power, to tax only vessels and crews taking salmon

on the high seas and transporting the same through

territorial waters into the state, while exempting

from tax (1) vessels and crews, other than the catch-

ing vessel, so transporting such salmon, and (2) ves-

sels and crews taking and so transporting salmon in

the shore waters of the state as distinguished from

the “offshore” waters, the regulatory or conservatory

characteristic of the legislation is nugatory. That

being so, the tax can be nothing but a state-levied

impost or duty on imports within the clear inh’

8

bition of sections 8 and 10, Article I, the Federal

Constitution.

There is nothing subtle about the erosion of prin-

ciple here involved. One of our major industries,

affording to the coastal states and to the nation a

veritable lifeline, is thus laid under state siege and,

more importantly, the commerce clauses, constitution-

ally designed as bulwarks against such siege, have

now been breached. The exercise of this court’s super-

visory power could provide a present remedy for what

is considered by petitioners a real damage to con-

stitutional principle.

2. As TO QuESTIONS Nos. 2 AND 3 hereinabove

presented

Unlike the prohibitory state law outlawing any

and all possession of certain game animals, whether

taken within or without the state during particular

closed seasons, which law this court upheld as a valid

exercise of police power in face of the commerce and

due process clauses of the Federal Constitution in

New York ex rel. Silz v. Hesterberg, 211 US. 31,

58 L. Ed. 75, 29 S. Ct. 10 (1908); and unlike the

regulatory state law imposing a tax upon all ferries,

including those carrying passengers and goods from

points within to points without the state, which law

this court upheld as a valid exercise of police power

in face of the commerce clause in Wiggins Ferry Co.

9

Co. v. East St. Louis, 107 U.S. 365, 27 L. Ed. 419,

2 S. Ct. 257 (1882), the instant legislative act, to-

gether with its subordinate administrative orders,

on its face and by its terms discriminates in the

matter both of transportation and possession between

high seas fishermen and fishermen in certain terri-

torial waters, on the one hand, and, on the alternative,

fishermen in other territorial waters such as bays,

inlets, canals, coves, sounds and estuaries.

To the extent that the holding of the Supreme

Court of Washington premises the constitutional va-

lidity of the instant legislative act upon the holdings

of this court in the Silz and Wiggins Ferry Co. cases,

supra, and upon similar United States Supreme Court

holdings of earlier or later vintage, it presents a

dangerous and unwarranted state extension of fed-

eral doctrine which (1) will perforce deny to the

discriminandi, citizens of the United States engaged

in an industry of major importance and consequence,

their guaranteed rights as to privileges and immu-

nities, due process and equal protection of the laws

under the 14th Amendment of the United States Con-

stitution; (2) will do violence to the commerce clauses

of said Constitution; (3) will likely provide the re-

spectability of precedent for legislative and judicial

fiat against citizens in other states engaged in the

same industry and in other industries; and (4), un-

10

checked, could well result, of itself and by further

extension, in irreparable harm to all the citizenry,

to the several states and to the nation as ‘a whole.

CONCLUSION

For the foregoing reasons this petition for a writ

of certiorari should be granted.

Respectfully submitted,

JOHN SPILLER

Counsel of Record for iPetitioners

406 Joseph Vance Building

Seattle 1, Washington.

MR. SMITH TROY

Of Counsel

Funk Volland Building,

Olympia, Washington.

MR. FRED M. BOND

Of Counsel

Werley Building,

South Bend, Washington

Dated July 6, 1955.

11

APPENDIX A

CHAPTER 147

(S.B. 234)

Salmon Resources — Conservation — Regulations

“AN ACT relating to the salmon resources of the State of

Washington; declaring a public policy; describing con-

ditions detrimental to such resources; prescribing reme-

dies and regulations; forbidding certain practices; im-

posing penalties; providing for permits; and declaring

an emergency.

Be it enacted by the Legislature of the State of

Washington:

Section 1. The State of Washington has a major

and substantial interest in the fisheries and fishing

industry within its boundaries and a s ecial interest

in its salmon resources. Salmon within the waters

of the state, including its coastal waters and offshore

waters contiguous thereto, constitute a commercial

asset and a vital food resource in which the state of

Washington has a special interest, in that such salmon

spawn in the fresh water streams of the state of

ashington, migrate to the sea and, in response to

their anadromous cycle, return to the fr water

streams of Washington, from which they originate,

to spawn and die. Serious conditions and hazards

detrimental to the preservation of this salmon supply

have arisen and are now present, both in the f

water streams of the state of Washington and in the

salt waters of bays, inlets, canals, coves, sounds and

estuaries, and in its coastal waters and offshore

waters —— thereto, as a result of the extensive

catching and taking of silver and chinook salmon

within the described waters in such quantities as sub-

stantially to deplete the spawning and the source of

existing and future salmon supplies and resources.

The preservation of the salmon industry and the

salmon resources of the state of Washington is vital

12

to the state’s economy, and effective measures and

remedies are necessary to prevent loss of such-salmon

resources due to the taking of immature fish and

salmon present in the state’s coastal and offshore

waters, from which waters such salmon migrate, feed

and return to the streams of this state to spawn.

It has proven impossible in seeking to regulate

catching and taking of such salmon to distinguish

between salmon taken from waters of the Pacific

Ocean over which the state has jurisdiction and those

taken outside the limits of the state’s jurisdiction and

brought within the boundaries of the state.

Research by the department of fisheries of the

state has established that silver and chinook salmon

found in the waters of district No. 2 and the Columbia

river district, as herein defined, are substantially

mature salmon. The silver and chinook salmon found

during certain periods within the waters of district

No. 1, herein defined, are for the most part immature

salmon, the taking of which would prevent the return

of an a number of such salmon to the spawn-

ing grounds in the streams of the state and risk the

destruction or substantial depletion of the state’s

salmon resources, and would constitute an irreparable

economic waste.

Sec. 2. The following fishery districts are here-

hy created:

_ . (1)_ District No. 1, as used in this act, shall

include the Straits of Juan de Fuca and the waters

of the Pacific ocean over which the state of Wash-

ington has jurisdiction, exclusive of bays, inlets,

canals, coves, sounds and estuaries.

_ . (2) District No. 2, as used in this act, shall

include all lands and waters over which the state of

Washington has jurisdiction, excepting therefrom

district No. 1, as herein defined.

13

—

Sec. 3. It shall be unlawful for commercial pur-

poses to fish for or take in the waters of district No.

1, as herein defined, silver salmon (Oncorhynchus

kisutch) between the first day of November and the

oe ee day of June of the year following, both dates

inclusive.

Sec. 4. It shall be unlawful for commercial pur-

ogg to fish for or take in the waters of district

o. 1, as herein defined, chinook salmon (Oncorhyn-

chus tschawytscha) between the first day of Novem-

ber and the fourteenth day of March of the year

following, both dates inclusive.

Sec. 5. It shall be unlawful for commercial pur-

poses for any person to have in his possession or

transport through the waters of district No. 1, as

herein defined, any fresh silver salmon (Oncorhyn-

chus kisutch) taken from said waters or from the

waters of the Pacific ocean during the period from

the first day of November and the fifteenth day of

June of the year following, both dates inclusive.

Sec. 6. It shall be unlawful for commercial pur-

poses for any person to have in his possession or

transport through the waters of district No. 1, as

herein defined, any fresh chinook salmon (Oncorhyn-

chus tschawytscha) taken from said waters or from

the waters of the Pacific ocean during the period

from the first day of November and the fourteenth

day of March of the year following, both dates

inclusive.

Sec. 7. It shall unlawful for any person in the

state of Washington engaged in the business of can-

ning, packing, processing, freezing, salting, smoking,

kippering, preserving in ice, or otherwise involved in

dealing in or curing any food fish or shellfish, or in

bre ones — of ogg Peed shellfish for om

cial pu 3 ave in his possession any silver

salmon (Oncorhynchus kisutch) —— or taba dur-

ing the period from the first day of November of any

14

year to the fifteenth day of June of the following

ear from the waters of the Pacific ocean or district

ap

Sec. 8. It shall be unlawful for any person in

the state of Washington engaged in the business of

canning, packing, processing, freezing, salting, smok-

ing, kippering, preserving in ice, or otherwise in-

volved in dealing in or curing any food fish or shell-

fish, or in wholesale selling of food fish or shellfish

for commercial purposes, to have in his possession

any chinook salmon (Oncorhynchus tschawytscha)

caught or taken during the period from the first day

of November of any year to the fourteenth day of

March of the following year from the waters of the

Pacific ocean or district No. 1: Provided, That with

respect to the closed season defined in this act, the

director of fisheries, upon due notice and hearing, and

upon investigation, may, in accordance with his judg-

ment, vary any of the opening or closing dates

thereof. Notice of such hearing shall appear in not

less than two issues of a newspaper of general circu-

lation at the state capitol.

Sec. 9. Every person or persons, firm or cor-

poration operating a fishing vessel of any description

used in the commercial taking or catching of chinook

or silver salmon in offshore waters and the trans-

porting or bringing the same in and through the

waters of the state of bg a ep) and delivering the

same in any place or port in the state of Washington

shall, as a condition of doing so, obtain a permit

from the director of fisheries. The fee for said permit

shall be ten dollars for the vessel and ten dollars for

each member of the crew thereof, such permit to be

effective during the fiscal year in which issued: Pro-

vided, That persons operating fishing vessels licensed

under RCW 75.28.080 and RCW 75.28.100 shall not

be required to pay any permit fees hereunder: Pro-

vided further, That if it appears to the director of

eries, after investigation, that the operation of

15

such vessel under such permit tends to result in the

impairment, depletion, or destruction of the salmon

resource and supply of this state and in bringing into

this state salmon products prohibited by law, in that

event, the director under such regulations and terms

as he may prescribe may revoke said permit to use

and operate such boat in the waters of this state, and

in the event of the revocation of such permit, the

further operation of such vessel as hereinabove set

forth shall then be unlawful.

Sec. 10. The several provisions of this act are

hereby declared to be separate and severable, and if

any clause, sentence, paragraph, subdivision, section

or part thereof shall, for any reason, be adjudged

invalid, or the applicability thereof to any person,

circumstance or oo adjudged invalid, such judg-

ment shall not affect, impair or invalidate the remain-

der of the act, and the applicability thereof to other

‘egg we circumstances or products shall not thereby

affected, but such judgment, if any, shall be con-

fined in its operation to the particular clause, sen-

tence, paragraph, subdivision, section or part thereof

directly involved in the controversy in which such

judgment shall have been rendered.

Sec. 11. Nothing herein shall be construed to

restrict or impair the authority of the director of

fisheries consistent with and pursuant to the pro-

visions of this act from issuing and publishing such

regulations as, after investigation, he may deem nec-

essary to administer this act and to effectuate its

purposes, or to administer and effectuate all other acts

governing or affecting the department of fisheries,

nor shall anything herein be construed to restrict or

impair the authority of the director to issue and

publish regulations he may find necessary under the

provisions of The Pacific Marine Fisheries Compact.

See. 12. This act is necessary for the immediate

preservation of the public peace, health and safety,

16

—

the support of the state aw and its existing

public institutions, and shall take effect immediately.

Passed the Senate March 3, 1953.

Passed the House March 9, 1953.

Approved by the Governor March 17, 1953.

APPENDIX B

That on or about the 31st day of May, 19538,

the defendant Robert J. Schoettler, Director of Fish-

eries of the State of Washington, purporting to act

by virtue of the authority in him vested by Fisheries

Code of the State of Washington Chapter 112 of the

Laws of Washington and as amended by Sections 1

to 9inclusive of Chapter 147 of the 1953 Session Laws

of the State of Washington, did make, adopt and

promulgate certain amendments to General Order No.

256 of the Orders of the Director of Fisheries, and

which said Order and amendments as far as these

plaintiffs are concerned provide as follows, to-wit:

Fishing allowed during Nov. 1 through March

15 or June 15:

1. Columbia River:

Lawful to fish commercially for salmon in

Columbia River Areas as follows:

a. Area No. 1 (Below Bonneville Dam)

April 30 to May 27th

Sept. 10 to December 1

Jan. 29 to March 1

(Order 256 as Amended by Order 334.

2/11/53)

b. Area No. 2 (Above Bonneville)

May 13 to June 9

Sept. 10 to Dec. 1

Jan. 29 to March 1

(Same order as above)

ce. Area No. 8 (Klickitat River)

April 30 until June 7

(Same order as above)

18

4.

d. Area No. 4 (Grays Bay)

October 10 to December 15.

(Same order as above)

Grays Harbor:

Lawful to fish for or possess SALMON:

a. Grays Harbor Area No. 1 taken with GILL

NETS July 16 ee December 15

(Order 256 amended by Order 336.

4/3/53)

Willapa Harbor:

Lawful to fish for ANY SALMON:

a. With GILL NET in Area No. 2 July

16 to Dec. 15.

(Apparently this is Order No. 256 —

Can’t find amendments. )

Puget Sound:

a. Lawful to fish for or possess ANY SALMON

with PURSE SEINES:

Areas 1 and 2 June 15 to Nov. 30

Areas 8, 4, 5, 6, 14 Oct. 5 through Nov. 30

Areas 8 and 10 Oct. 20 ag Nov. 30

(Order 256 Amended by 338) 4/29/53

b. Lawful to fish for or possess ANY SALMON

with GILLNETs:

Area 1 March 15 through Nov. 30

—_ 2 through 9 June 15 through Nov.

Area 9A Oct. 20 through Nov. 20

Areas 10, 12, 14 June 15 through Nov. 30

ce. Puget Sound lawful to take or possess any

salmon with REEF NET:

Areas 1 and 2 June 15 through Nov. 30

Area 3 Oct. 5 through Nov. 30

d. Lawful to take or possess Any Salmon

with DRAG SEINES:

Areas 1 and 2, June 15 through Nov. 30

19

Areas 3, 4, 5, 6, 14 Oct. 15 through Nov.

30

Areas 8 and 10 Oct. 20 through Nov. 30

(Same order as above)

APPENDIX C

(No. 32952. En Banc. March 10, 1955.)

CLARENCE FRACH, et al., Appellants, v. ROBERT

J. SCHOETTLER, as Director of the State De-

partment of Fisheries, et al., Respondents.

(1) Constitutional Law—Statutes— Validity —

Burden of Proof.

(2) Same—Police Power—Nature and Scope—

Presumptions.

(3) Statutes—Determination of Validity—Leg-

ey Declaration—Judicial Authority and

uty.

(4) Fish—Constitutional Law—Police Power—

Regulation and Conservation of Salmon.

(5) Constitutional Law —Class Legislation —

ReguJation of Fishermen.

(6) Same—Delegation of Power—To Adminis-

trative Boards—Authority to Make Rules

and Regulations.

(7) Same—Commerce— Fish— Licenses—Fish-

ing Locations—Regulation.

(8) Fish—Constitutional Law—Police Power—

a of Salmon Industry — Permit

ees.

(9) Same—Commerce—Regulation—Salmon In-

dustry—Permit Fees.

(10) Same—Salmon Industry—State Regulation

—Possession and Sale.

(11) Constitutional Law—Police Power—Fishing

Industry—Public Policy—Regulation.

(12) Same—Construction of Constitutional Pro-

visions—“Due Process Clause” and “Privi-

lege and Immunity Clauses” — Legislative

Process—Police Power.

(13) Declaratory Judgments — Pleading — De-

murrer.

Appeal from a judgment of the superior court

for Thurston county, No. 27358, Wright, J., entered

21

March 29, 1954, upon sustaining a demurrer to the

complaint, dismissing an action for injunctive relief

and for a declaratory judgment. Affirmed.

Fred M. Bond, Smith Troy, and Philip W. Rich-

ardson, for appellants.

The Attorney General, Joseph T. Mijich, and

Thomas A. Swayze, Jr., Assistants, for respondents.

OTT, J.—This action was brought by one hun-

dred thirty-two fishermen against the director of

the department of fisheries of the state of Washington

and the state treasurer, for the purpose of testing the

validity of chapter 147, Laws of 1953, p. 287 Icf.

RCW (Sup. 1953) 75.181, in so far as this act affects

the or of the plaintiffs to catch salmon exclusively

beyond the territorial waters of the state, and to make

q sale and disposal of them within the state boundar-

ies during certain seasons.

Plaintiffs sought an injunction against enforce-

ment of this act upon the ground that it is uncon-

stitutional and, therefore, void, and that much of the

authority granted to the director constitutes an un-

lawful delegation of legislative power. By an alterna-

tive cause of action, plaintiffs sought a declarato

judgment decreeing and adjudicating the statute void.

A demurrer to the second amended complaint of

the plaintiff was sustained by the trial court. Plair-

tiffs declining to plead further, the action was dis-

missed with prejudice. The appen to this court was

taken from the judgment of ismissal.

Plaintiffs (hereinafter referred to as appellants)

are residents of this state, and the owners of com-

mercial fishing vessels, fishing exclusively three miles

beyond the shores of the state of Washington, which

is outside the territorial limits of the state. Although

the appellants fish commercially for other fish, in this

action they are concerned only with the regulatory

provisions of the act in question as it applies to their

22

salmon fishing activities. After the salmon are caught

and cleaned, they are brought into the state and sold

to canneries. By $1 of the act, the legislature deter-

mined that it is impossible to distinguish the salmon

that are caught outside the state boundaries from

those caught within the territorial waters of Wash-

ington.

The oo sections of the act provide gen-

erally as follows:

Section 1 declares the state legislative policy con-

cerning the salmon industry.

Section 2 creates two fishery districts, district

No. 1, which includes the Straits of Juan de Fuca

and the waters of the Pacific ocean over which the

state has jurisdiction, exclusive of bays, inlets, canals,

coves, sounds, and estuaries, and district No. 2, which

includes all waters over which the state has jurisdic-

tion, excepting therefrom district No 1

Sections 3 and 4 forbid commercial fishing for

silver salmon in the waters of district No. 1 between

November Ist and June 15th, and for chinook salmon

between Novmber lst and March 14th.

Section 5 forbids ion or transportation

through the waters of district No. 1 of silver salmon

taken from those waters or from the Pacific ocean

during the period from November 1st to June 15th.

_ Section 6 makes the same provision relative to

chinook salmon for the period from November Ist

to March 14th.

Sections 7 and 8 make it unlawful for any proc-

essor, canner, and so forth, to have in his possession

silver or chinook salmon taken from the waters of

district No. 1 or the Pacific ocean during the closed

Seasons specified. Section 8 also authorizes the direc-

tor, upon due notice and hearing, to vary the opening

and closing dates of the fishing seasons.

23

Section 9 provides that anyone operating a com-

mercial fishing vessel used for eatching chinook or

silver salmon in offshore waters, and transporting

them in and through the waters of the state for de-

livery to any place or port in the state, shall obtain

a permit from the director of fisheries. The fee for

this permit is ten dollars for the vessel and ten dollars

for each member of its crew. The section further

empowers the director to revoke permits for violation

of regulations.

On or about May 31, 1953, the director adopted

certain amendments to General Order No. 256 of the

Orders of the Director of Fisheries. These amend-

ments extended the open season in certain areas

within the state for those using various types of

fishing gear.

(1) It is a well established rule that one who

attacks the constitutionality of a law, clearly has the

burden of proof. Shea v. Olson, 185 Wash. 148, 151,

53 P. (2d) 615, 111 A.L.R, 998 (1936), and cases

cited; Sears v. Western Thrift Stores of Olympia, 10

Wn. (2d) 372, 116 P. (2d) 756 (1941); Martin v.

Tollefson, 24 Wn. (2d) 211, 168 P. (2d) 594 (1945);

Gruen v. State Tax Comm., 35 Wn. (2d) 4, SA

(2d) 651 (1949); Miller v. Howe Sound Min. Co.,

77 F. Supp. 540, 11 Am. Jur. 776, Constitutional

Law, $128.

(2,3) Every law is presumed to be in the interest

of the public welfare. Tacoma v. Fox, 158 Wash. 325,

290 Pac. 1010 (1930). See, also, New York ex rel.

Silz v. Hesterberg, 211 U.S. 31, 53 L. Ed. 7, 29 S. Ct.

10 (1908). In the instant case, §1 of the act declares

the public policy of this state. This court cannot dis-

pute this ge finding, or declaration of olicy.

State ex rel. Govan v. Clausen, 108 Wash. 133, 183

Pac. 115 (1919) ; State v. Miller, 149 Wash. 545, 271

Pac. 826 (1928); State ex. rel. Gray v. Martin, 29

Wn. (2d) 799, 804, 189 P. (2d) 637 (1948), and

24

cases cited; State ex rel. Pennock v. Coe, 42 Wn. (2d)

569, 578, 257 P. (2d) 190 (1953), and cases cited.

With these fundamental principles in mind, we

must next determine whether the exercise of the

power delegated to the director by the act is within

the police power reserved to a sovereign state.

“Tt is well established that, by reason of the

state’s control over fish within its limits, it is

within the police power of the state, subject to

constitutional restrictions, to eye by legislative

enactment such restrictions and limitations on the

catching of fish as may be reasonably necessary

for the protection and regulation of the public’s

rights therein, even to the extent of restricting

the use of, or right of noe in, the fish after

they are taken, and of obliging all citizens to

conform to such regulations by inflicting penalties

on the violation of them.” 36 C.J.S. 857, Fish,

This court, in defining police power, stated:

“However difficult it may be to give a precise

or satisfactory definition of ‘police power,’ there

is no doubt that the state, in the exercise of such

power, may prescribe laws tending to promote

the health, peace, morals, education, good order

and welfare of the people . . . the only limitation

upon it (police power) is that it must reason-

ably tend to correct some evil or promote some

interest in the state, and not violate any direct

or positive mandate of the constitution.” Shea v.

Olson, supra, p. 158.

See, also, State v .Walter Bowen & Co., 86

Wash. 28, 149 Pac. 3380 (1915); Parrott & Co. v.

Benson, 114 Wash. 117, 194 Pac. 986 (1921); State

v. Sears, 4 Wn. (2d) 200, 205, 103 P. (2d) 387

(1940), and cases cited; Lane v. ro on of Labor

& Industries, 21 Wn. (2d) 420, 427, 151 P. (2d) 440

25

(1944), and cases cited; State v. Dexter, 32 Wn. (2d)

551, 554, 202 P. (2d) 906, 138 A.L.R. (2d) 1081

(1949), and cases cited.

(4) We conclude that regulation and conserva-

tion of our salmon industry, as defined in the ques-

tioned act, promote the “good order and welfare of the

people,” and hence are clearly within the police power

of the state.

We turn now to the consideration of appellants’

assignments of error.

Appellants contend that the trial court erred in

allowing the director to enforce 89 of the act. This

section requires the fishermen to obtain a permit for

themselves and for the boat they operate, and to

pay a fee therefor. It is contended that this part of

the act constitutes class legislation and attempts to

delegate ar to the director of fisheries in violation

of Art. I, 8§8 and 10, of the United States con-

stitution, and Art. I, $85, 7, and 12, of the con-

stitution of the state of Washington.

(5) We cannot agree that this act constitutes

class legislation or is discriminatory. All commercial

fishermen, catching and transporting salmon in Wash-

ington waters, are required to obtain a permit and

pay the same fee. See 89 of the questioned act

(RCW 75.18.080), and RCW 72.28.080, 72.28.100.

There is no distinction as to types of equipment

used or where the user thereof may be fishing. All

who come within the provisions of the statutes are

equally affected thereby.

In State v. Hennessy, 114 Wash. 351, 361, 195

Pac. 211 (1921), we said:

“The legislature has power to pass all needful

olice regulations and so long as such regulations

ar with equal weight upon all in like situation

or - the same class, they are upheld by the

courts.”

26

Does the act unlawfully delegate legislative

power to the director? The general question has been

considered by this court in the following cases: Vail

v. Seaborg, 120 Wash. 126, 207 Pac. 15 (1922);

McMillan v. Sims, 182 Wash. 265, 231 Pac. 943

(1925) ; State v. Nelson, 146 Wash. 17, 261 Pac. 796

(1927) ; State v. Miles, 5 Wn. (2d) 322, 105 P. (2d)

51 (1940); Senior Citizens League v. erty of

Social Security, 38 Wn. (2d) 142, 153, 228 P. (2d)

478 (1951), and cases cited.

These cases recognize the distinction between the

power to legislate and the power to administer. The

delegated authority is simply ministerial. In Vail v.

Seaborg, supra, which declared lawful a similar dele-

er % power to the director of fisheries, we said

p. 130):

“The recognized distinction in matters of this

kind, however, is between the power to legislate

and the power to administer.

“The great increase in the duties of the gov-

erning bodies has brought about a demand that

matters in which the general public are interested

shall be governed in their details t» an eatent im-

es to be attended to by the legslative

ies which meet only biennially, and statutes

of this character are passed to meet the situation

. . . . It is a well known fact that the salmon

industry of the state is rapidly disappearing and

the legislature declares its purpose to prot»ct and

perpetuate it.”

In McMillan v. Sims, supra, we said (p. 270):

“Here is a plain, express and specific dele-

gation, not of non-delegable legislative power, but

of delegable power, to prescribe territorial limits

within which fish in the state’s waters may or

may not be taken.”

(6) There is no question that the legislature may

27

delegate the power to make rules and regulations

relating to the taking of fish and game, within a

stated policy of protection and conservation of our

natural resources. Senior Citizens League v. Depart-

ment of Social Security, supra, Pp. 153

We find no merit in appellants’ contention that

legislative powers have been unlawfully delegated to

the director.

Appellants contend that §9 violates Art. I, $8 of

the United States constitution, which provides, in

part:

“The congress shall have power. - -

“To regulate commerce with foreign nations,

and among the several states, . - Ad

(7) With this we do not agree. It should be

stated at the outset that, according to 89 of the

act, only vessels and crews which bring their catch

through the waters within the jurisdiction of this

state, or deliver the catch to ports within this state,

are required to have a permit. It is not necessary for

other vessels fishing in the ocean off our coast to

obtain a permit. If boats fishing outside the three-

mile limit were not included in the permit require-

ment when they enter Washington waters, it would

defeat the purpose of the act. The operator of any

boat within the three-mile limits, heading for port,

could claim that the fish were caught more than three

miles from shore and, therefore, he would not be

within the jurisdiction of the act.

In Mirkovich v. Milnor, 34 F. Supp. 409 (1940),

. —_ “yo with a similar regulation, it was sta

(p. :

“Tf this latter power (to regulate fishermen

cutside California territorial waters) were denied

to the state, it would clearly result in the racti-

cal deprivation to the state of its undoubted right

28

to regulate the taking of fish from within its

territorial waters.”

See, also, State v. Belknap, 104 Wash. 221, 176

Pac. 5 (1918); Johnson v. Gentry, 220 Cal. 231, 30

P. (2d) 400, 92 A.L.R. 1264 (1934); New York ex

rel. Silz v. Hesterberg, supra.

(8) Appellants next argue that, even though the

permit is found to be a valid exercise of the police

power, the ten-dollar fee is invalid because it bears

no relation to the general welfare of the state. The

regulation of our salmon industry for conservation

purposes certainly bears directly on our state’s gen-

eral welfare. As is pointed out in State v. Miller,

supra (p. 549):

“The legislature, in the protection of its own

property, may impose a regulation upon other

property which never belonged to it, if in its

opinion such a regulation is needed.”

That such regulations in this state are needed, is

clearly pointed out by the legislative declaration in

§1 of the act.

In Wiggins Ferry Co. v. East St. Louis, 107 U.S.

vay L. Ed. 419, 2 S. Ct. 257 (1882) the court

stated :

“The levying of a tax upon vessels .. . or

the exaction of a license fee by the State within

which the property subject to the exaction has its

situs, is not a regulation of commerce within the

se of the Constitution of the United

— .

We find no merit in appellants’ contention.

(9) Appellants’ next contention is that §9 of

the act violates Art. 1, $10, of the United States

constitution, which provides:

“. . . No state shall, without the consent of

29

PERRIS i eh catte aera ee we 7 alia 7 i bi . =

the congress, lay any imposts or duties on imports

or exports, except what may be absolutely neces-

sary for executing its inspection laws: . . -

The act does not levy a tax upon the catch, or

on the size or weight of the fish, or upon any item

of import. The permit fee is a charge assessed upon

the men engaged in the work and upon the boat, and

is for the purpose of regulation and conservation of

our salmon industry.

Counsel for —- rely Sw Booth Fisheries

Corp. v. Case, 182 Wash. 392, 47 P. (2d) 834 (1935).

The statute in the Booth case levied a tax on the fish

and was designed as a “catch tax.” In this respect,

the Booth case is readily distinguishable from the case

at bar. The permit fee is nominal. The act is not a

revenue measure. Regulatory fees paid are not subject

to the constitutional restrictions on the power to tax.

McQueen v. Kittitas County, 115 Wash. 672, 198 Pac.

394 (1921).

Since the permit fee imposed by the act is in no

sense a tax upon imports, we find no merit in appel-

lants’ contention that the act is in violation of Art. I,

§10, of the United States constitution.

(10) Appellants next contend that the trial court

erred in upholding the director’s action in enforcing

those sections (5,6,7,8) of chapter 147, Laws of 1953,

which prohibit appellants from possessing and selling

fish within this state during certain seasons.

We hold that the possession and sale of the

salmon by appellants are subject to state regulation

and supervision, and hen has oorgwaais 0 been said

concerning permits and fees app ies equally to posses-

sion and sale. Even though the taking is havea our

jurisdiction, the possession and sale are within our

a and appellants are subject to state reg-

ulation.

In Bayside Fish Flour Co. v. Gentry, 297 US.

30

422, 80 L. Ed. 772, 56 S. Ct. 518, the court said (p.

426) :

“Sardines taken from waters within the jur-

isdiction of the state, and those taken from with-

out are, of course, indistinguishable; and to the

extent that the act deals with the use or treatment

of fish brought into the state from the outside, its

legal justification rests upon the ground that it

operates as a shield against the covert depletion

of the local supply, and thus tends to effectuate

the policy of the ow by rendering evasion of it

less easy.”

Appellants’ next contention is that the trial court

erred in upholding the director’s action in enforcing

General Order No. 256, as amended. The regulation

does not deny appellants the right to enter into the

areas where the fishing seasons are open, and to fish

in those areas with certain prescribed equipment, and

to dispose of the fish so obtained. Their rights and

privileges in this regard are equal to those of all who

are engaged in the like business of fishing. What has

been said before with reference to class legislation,

and the power of the director to make the regulation,

applies to the action of the director in this regard. See

McMillan v. Sims, supra.

(11) With reference to appellants’ contention

that there has been a violation of Art. I, §7, of the

state constitution, we hold that the fishing industry is

not a private affair of the appellants. It is an affair

of great public interest and concern. Wiegardt v.

Brennan, 192 Wash. 529, 73 P. (2d) 1330 (1987);

State v. Dexter, supra, p. 557.

(12) Appellants’ rights with reference to the

“due process clause” and the “privilege and immunity

clauses,” as set out in Art. I, §§3 and 12, of the

State constitution, and in §1 of the fourteenth

amendment to the United States constitution, are not

abridged by the act in question. It is the established

31

rule in Washington that none of these constitutional

rovisions applies to laws enacted by the state legis-

ature in the exercise of its police power. Seattle v.

Gervasi, 144 Wash. 429, 258 Pac. 28 (1927); Shea

v. Olson, supra; Lane v. Department of Labor & In-

dustries, supra; Senior Citizens League v. Depart-

ment of Social Security, supra.

(18) Finally, it is contended that, upon a peti-

tion for a declaratory judgment, a demurrer should

not be sustained, but that the matter should be heard

upon its merits.

A reading of the entire declaratory judgment act

convinces us that a proceeding commenced under the

provisions of the act is subject to the same rules of

pleading as any other civil action.

We are of the opinion that none of the assign-

ments of error merits sustaining the contentions of

the appellants.

We hold that chapter 147, Laws of 1953, is a

valid act and does not violate or abridge any of the

state or Federal constitutional rights or guarantees of

the appellants.

The judgment of the trial court is affirmed.

ALL CONCUR.

APPENDIX D

IN THE SUPREME COURT OF THE STATE

OF WASHINGTON

CLARENCE FRACH, et al.,

Appellants,

vs. No. 32952

ROBERT J. SCHOETTLER, as \ PETITION

.Virector of the Department of FOR

Ficheries of the State of Wash- | RE-HEARING

ington, et al.,

Respondents.

Come now the above named appellants and file

this a petition for re-hearing in the above entitled

cause and for the following reasons:

FIRST

That appellants feel the opinion of said court has

not given due consideration to all of their rights and

principles involved in said cause, and that in justice

to all parties this being an important case to both

appellants and respondents that this petition for re-

hearing is a necessity.

SECOND

This action was brought testing the validity of

Chapter 147, Laws of 1953 (See RCW Chapter

75.18), as far as this act affects the rights of the

plaintiffs to catch salmon exclusively beyond the ter-

ritorial waters of. the state, and make a sale and

disposal of them within the state’s boundaries during

certain seasons.

THIRD

The opinion of this court will be found in Wash.

Dec. Vol. 146 No. 10 March 23, 1955, pages 265 to

294 inclusive, and on pages 267, 268 the court said:

Ae eRe Se ee ny bedi teed

A. It is a well established rule that one who

attacks the constitutionality of a law, clearly has the

burden of proof. (Citing cases).

B. Every law is presumed to be in the interest

of the public welfare. (Citing cases).

C. This court cannot dispute this legislative

finding, or declaration of policy. (Citing cases).

FOURTH

Appellants do not dispute the principles of law

mentioned in the ghey number of paragraph,

however they do feel in all due respect to the members

of this court that the cases cited under each of those

principles of law above stated, are not applicable to

the facts involved in this case as far as they affect

the appellants, are concerned. Before discussing these

cases in this petition for re-hearing we wish to call

the court’s attention to the following facts.

(1) Section 2 of the act defines District No. 1 as

the Straits of Juan de Fuca and the three miles of

State controlled Pacific waters, EXCEPT BAYS,

SOUNDS, INLETS, ESTUARIES, ETC.

Since all State controlled Pacific waters are not

affected by the prohibitions and requirements of Sec-

tions 3 to 9 inclusive of the Act, the legislature vio-

lates both the Federal and State Constitutions for the

‘dentical same reason that the legislation considered

in State v. Belknap (104 Wash. 221) was held viola-

tive of the law, viz: the exception of Sound and other

State controlled Pacific waters and the exception of

State controlled waters other than Pacific defeats the

urpose of the legislation which is the only justifica-

tion for the legislation.

_ (2) The rovision of Section 9 prohibiting 4

fishing vessel from transporting fish thru the waters

of the State and delivering them in a State port is

34

discriminatory against such vessel contrary to the

Federal and State Constitutions.

It will be noted that transportation by means of

another vessel through such waters is not prohibited,

that transportation by air is not prohibited, that

transportation through such waters with delivery at

an out of state port, is not prohibited.

(3) Section 9 of the Act requires a permit at the

rate of $10.00 for the vessel and $10.00 for each

member of the crew only with reference to a person,

firm or corporation operating a vessel (1) used in

taking salmon in off-shore waters and (2) transport-

ing or bringing the same in and through the waters

of the State of Washington and (8) delivering the

same in any place or port in the State of Washington.

No permit is required of a person, firm or corporation

operating a fishing vessel used in the taking of salmon

in off-shore waters (1) if the transportation of the

salmon to a port cr place in the State of Washington

is by air; or (2) if the transportation of the salmon

to a port or plac> in the State of Washington is by

another vessel; and (3) if the transportation is

through the waters of the State of Washington but

the delivery of the fish is in a place or port outside

the State of Washington. It would appear then that

the imposition of a multiple fee for certain vessels and

their crew members is in fact not designed for regula-

tory — since regulation is really not sought for

or achieved, and the imposition can only be considered

as a levy or a tax for revenue purposes and therefore

must be illegal in the light of the cases cited by

appellants. * * * *

35

APPENDIX E

(No. 32952. April 20, 1955.)

CLARENCE FRACH et al., Appellants, v. ROBERT

J. SCHOETTLER, as Director of the State De-

partment of Fisheries, et al., Respondents.

(Reported in 146 Wash. Dec. 265)

Petition for rehearing denied.

APPENDIX F

RULE 50

PETITIONS FOR REHEARING

(Adopted November 17, 1952; effective January

2, 1953.)

Any party to an appealed case may, after an

opinion has been filed, present to the court, in the

manner and time as hereinafter provided, a petition

for rehearing.

Every petition for rehearing shall be filed within —

thirty days after the opinion in the cause has

filed. No more than one petition shall be filed by the

same party. The filing of a petition for rehearing

shall suspend the decision of the court until the cause —

is finally determined. * *

36

as

Diy

ee Se

:

:

'

'

:

:

IN THE

SUPREME COURT

OF THE

UNITED STATES

CLARENCE FRACH, et al., Petitioners,

vs.

ROBERT J. SCHOETTLER, as Director of the ¢ No. 230

Department of Fisheries of the State of

Washington, et al., Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF WASHINGTON

BRIEF FOR THE RESPONDENTS IN OPPOSITION

DON EASTVOLD,

Attorney General,

JOSEPH T. MIJICH,

Assistant Attorney General,

E. P. DONNNELLY,

Assistant Attorney General,

2018 Smith Tower, Seattle 4, Washington

Page

SRA TOUT 6s nc wise n yn k he She Nas Ree cde 5

PE. 4c bs Rae OK CAR bia Meee eee eee 6

Pee ree eee Tree ee 6

Ee eee ey eee eee eee Tr eo 7

Additional Statement of the Case............... 8

Spnmn Tar TOO WERE. oo ce ein vaesncnses 9

PMR sic. cewek Gade ck aw haxdas shaneees 11

RMR Ob 62 ab s-ca'ks sda ds nadekndeetadcoes 12-18

ge ere reer ey ene Py rey 18

CITATIONS

Cases:

Bayside Fish Flour Co. v. Gentry, 297 U. S.

€22, 80 L.. Bd. TRE C19S5).. 0. ve ecces 10

Mirkovich v. Milnor, 34 F. Supp. 409 (1940). 10

Silz v. Hesterberg, 211 U. S. 31, 53 L. Ed. 75,

gp ere ee 9

Skiriotes v. Florida, 313 U. S. 69, 85 L. Ed.

pe bt ey a re 10

Wiggins Ferry Co. v. East St. Louis, 107 U. S.

365, 27 L. Ed. 419, 2S. Ct. 257......... 11

Federal Statute:

te Soe gi! een rr 6

State Statutes:

Chap. 147, Laws of 1953, Sec. 1 through 12... 7

Chap. 207, Laws of 1953, Sec. 1, RCW

PE sh da 8 CoRR DD ha Ee os 7,8

Chap. 271, Laws of 1951, Sec. 8, RCW

Fe ee Ce oe 7,8

IN THE

SUPREME COURT

OF THE

UNITED STATES

CLARENCE FRACH, et al., Petitioners, )

vs.

ROBERT J. SCHOETTLER, as Director of the No. 230

Department of Fisheries of the State of

Washington, et al., Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF WASHINGTON

BRIEF FOR THE RESPONDENTS IN OPPOSITION

Respondents pray that a writ of certiorari not be

issued to review the judgment of the Supreme Court

of the state of Washington because the issues raised

herein have previously been decided with the same

result by the Supreme Court of the United States.

OPINIONS BELOW

All nine justices of the Supreme Court of the state

of Washington agreed to an opinion reported in 146

6

Wash. Dec. 265 (R. 61), and denied a petition for

rehearing reported in 146 Wash. Dec. 443 (R. 82).

JURISDICTION

The opinion of the Supreme Court of the state of

Washington was filed with the clerk of said court on

March 10, 1955 (R. 61). A petition for rehearing was

denied on April 20, 1955 (R. 82). The petition for a

writ of certiorari was filed on July 13, 1955. The

jurisdiction of this court is invoked under 28 U.S.C,

See. 1257 (3).

QUESTIONS PRESENTED

1. Is a state law repugnant to the federal con-

stitution which prohibits the possession of salmon in

state waters during a certain season, regardless of

whether those salmon were taken in closed waters

within the state or were taken in offshore (nonstate)

waters adjacent thereto?

9. Is a state law repugnant to the Federal Con-

stitution which requires all persons operating fishing

vessels in offshore (nonstate) waters to obtain a state

permit if they transport such vessels within the state

and deliver their catch within the state, for which

permit they must pay a fee of ten dollars per boat plus

ten dollars for each crew member, in light of the fact

that fishermen operating vessels exclusively within

state waters are required to obtain a similar permit

and pay an identical fee?

The questions presented by petitioners on pages

9-4 of their brief are misleading since they imply that

ae ae eae. a, ee

7

the permit fee is a tax on imports and that such fee is

not required of vessels and crew members operating

within state waters. This is not true. The permit is

a license for the privilege of using state waters and is

not a tax on the fish. Also, RCW 75.28.080 and RCW

75.28.100, as printed in pertinent part in Appendix B

hereto, infra, page 18, require a similar permit and

identical fee of vessels and crew members operating

within state waters. Petitioners also imply that a non-

catching vessel delivering salmon within the state is

immune from the permit requirement. It should first

be noted that such a class of vessels does not exist in

fact and has not been alleged to exist in the pleadings.

However, if such class did exist, it would come within

the identical permit requirement of RCW 75.28.100

(Appendix B).

Petitioners also imply that a non-catching vessel

may transport salmon through closed state waters.

This is not true. Sections 5 and 6 of the statute in-

volved (Appendix A) prohibit “any person” from

transporting salmon through closed state waters

whether taken (by anyone) in such waters or in off-

shore (nonstate) waters adjacent thereto.

STATUTE INVOLVED

The statutory provisions whose constitutionality

are in question are Sections 1 through 12 of Chapter

147, Laws of Washington of 1953. They are printed

in Appendix A hereto, infra, pages 12-18.

8

As an aid to construe the above statute, there is

printed in pertinent part in Appendix B hereto, infra,

page 18, RCW 75.28.080 and RCW 75.28.100, which

are Section 1, Chapter 207, Laws of Washington of

1953 and Section 8, Chapter 271, Laws of Washington

of 1951, respectively.

ADDITIONAL STATEMENT OF THE CASE

The following facts should be added to petitioner’s

statement of the case:

Section 1 of the statute involved sets forth certain

legislative findings of fact and a declaration of policy

(Appendix A). In the third paragraph of said section,

the legislature found that it is impossible to distinguish

between salmon taken from waters of the Pacific Ocean

over which the state has jurisdiction (District No. 1)

and those taken in adjacent waters outside the limits

of the state’s jurisdiction. In the fourth paragraph of

said section, the legislature found that the salmon in

the waters of District No. 2 are substantially mature

salmon, whereas those found in the waters of District

No. 1 are for the most part immature salmon. There-

fore, this Court may judicially notice that the salmon

found in District No. 1 (state waters) are distinguish-

able from those found in District No. 2 (state waters) ;

however, the salmon found in District No. 1 (state

waters) are indistinguishable from those found in

adjacent offshore (nonstate) waters.

9

REASONS FOR DENYING WRIT

The judgment of the Supreme Court of the state

of Washington is correct and is not in conflict with any

federal decisions so as to warrant further review of the

case by this court.

1. As to Question No. 1 hereinabove presented :

It is necessary as a conservation measure for the

state to prohibit possession of salmon in closed state

waters even if the salmon were taken in adjacent non-

state waters. The reason for this is that fish in the

offshore (nonstate) waters cannot be distinguished

from those in the inshore (state) waters, and therefore,

the law is necessary to prevent the possibility of fraud

or deceit being practiced during the closed season by

fishermen claiming that the fish were taken in offshore

waters (outside three-mile limit) when in fact they

were taken in adjacent inshore waters (inside three-

mile limit).

This court has approved similar legislation in Silz

v. Hesterberg, 211 U. S. 31, 53 L. Ed. 75, 29 S. Ct. 10

(1908), despite the fact that in that case, state and

nonstate game was readily distinguishable and the

state could have protected the local supply by more

stringent regulation and inspection without affecting

out-of-state game. This is not possible in the instant

case as the fish in offshore and inshore waters are in-

distinguishable. Therefore, this is all the more reason

why this statute should be upheld.

The statute involved herein does not regulate the

we eee ST ee eee an”

10

operations of the petitioners while they are in nonstate

waters as did the legislation in Skiriotes v. Florida, 313

U. S. 69, 85 L. Ed. 1193 (1941), which this court up-

held despite this seemingly apparent repugnance to

the constitution.

2. As to Question No. 2:

The permit requirement is necessary in order for

the state to effectuate the exercise of its police powers

to protect its fishery resources. Teo do this, the state

must be able to identify and have some measure of con-

trol over those persons operating in offshore (nonstate)

waters when they use the state’s waters to transport

and deliver fish, and to charge a reasonable fee to ef-

fectuate this control. It is not a tax on imports since

it is not based on the extent of the catch. It is merely

a license to use state waters. It must also be borne in

mind that vessels and crew members fishing in state

waters must obtain a similar permit and pay an

identical fee (Appendix B). It would defeat the pur-

pose of this act to except therefrom vessels fishing in

offshore (nonstate) waters. Any vessel operator

actually taking fish in inshore state waters could claim

that his catch was taken in adjacent offshore (non-

state) waters. In this way, the state would lose its

control over persons taking fish in state waters.

The Court, in the case of Mirkovich v. Milnor, 34

F. Supp. 409 (1940), upheld a similar California

statute.

This Court, in the case of Bayside Fish Flour Co.

v. Gentry, 297 U. S. 422, page 426, 80 L. Ed. 772

11

(1935), upheld the constitutionality of a law licensing

sardine reduction plants and prohibiting them from

taking sardines during certain seasons. It was argued

that the law did not apply to sardines taken outside

the three-mile limit. In rejecting this, this Court said:

“The plain purpose of the measure simply is

to conserve for food the fish found within the

waters of the state. Over these fish and over state

wild game generally, the state has supreme con-

trol. Sardines taken from waters within the juri-

diction of the state and those taken from without

are, of course, indistinguishable; and to the extent

that the act deals with the use or treatment of fish

brought into the state from the outside, its legal

justification rests upon the ground that it operates

as a shield against the covert depletion of the local

supply and thus tends to effectuate the policy of

the law by rendering evasion of it less easy.”

This Court has been consistent in upholding a

state’s right to license vessels used in interstate com-

merce when they come within the jurisdiction of the

state. See Wiggins Ferry Co. v. East St. Louis, 107

U. S. 365, 27 L. Ed. 419, 2 S. Ct. 257 (1882).

CONCLUSION

For the foregoing reasons, respondents respect-

fully urge that the petition for writ of certiorari should

be denied.

Respectfully submitted,

DON EASTVOLD,

Attorney General,

JOSEPH T. MIJICH,

Assistant Attorney General,

E. P. DONNELLY,

Assistant Attorney General,

Attorneys for Respondents.

12

APPENDIX A

CHAPTER 147

(S. B. 234)

Salmon Resources—Conservation—Regulatio”:s

“An Act relating to the salmon resources of the State

of Washington; declaring a public policy ; describ-

ing conditions detrimental to such resources ; =

scribing remedies and regulations; forbidding

certain practices; imposing penalties; providing

for permits, and declaring an emergency.

Be it enacted by the Legislature of the State of Wash-

ington:

Section 1. The State of Washington has a major

and substantial interest in the fisheries and fishing

industry within its boundaries and a special interest

in its salmon resources. Salmon within the waters of

the state, including its coastal waters and offshore

waters contiguous thereto, constitute a commercial

- asset and a vital food resource in which the state of

Washington has a special interest, in that such salmon

spawn in the fresh water streams of the state of Wash-

ington, migrate to the sea and, in response to their

anadromous cycle, return to the fresh water streams of

Washington, from which they originate, to spawn and

die. Serious cnditions and hazards detrimental to

the preservation of this salmon supply have arisen and

are now present, both in the fresh water streams of the

state of Washington and in the salt waters of bays,

inlets, canals, coves, sounds an? estuaries, and in its

coastal waters and offshore waters contiguous thereto,

as a result of the extensive catching and taking of silver

13

and chinook salmon within the described waters in such

quantities as substantially to deplete the spawning and

the source of existing and future salmon supplies and

resources.

The preservation of the salmon industry and

the salmon resources of the state of Washington is vital

to the state’s economy, and effective measures and

remedies are necessary to prevent loss of such salmon

resources due to the taking of immature fish and salmon

present in the state’s coastal and offshore waters, from

which waters such salmon migrate, feed and return to

the streams of this state to spawn.

It has proven impossible in seeking to regulate

catching and taking of such salmon to distingvish be-

tween salmon taken from waters of the Pacific Ocean

over which the state has jurisdiction and those taken

outside the limits of the state’s jurisdiction and brought

within the boundaries of the state.

Research by the department of fisheries of the

state has established that silver and chinook salmon

found in the waters of district No. 2 and the Columbia

river district, as herein defined, are substantially

mature salmon. The silver and chinook salmon found

during certain periods within the waters of district

No. 1, herein defined, are for the most part immature

salmon, the taking of which would prevent the return

of an adequate number of such salmon to the spawning

grounds in the streams of the state and risk the destruc-

tion or substantial depletion of the state’s salmon re-

14

sources, and would constitute an irreparable economic

waste.

Sec. 2. The following fishery districts are hereby

created :

(1) District No. 1, as used in this act, shall in-

clude the Straits of Juan de Fuca and the waters of the

Pacific ocean over which the state of Washington has

jurisdiction, exclusive of bays, inlets, canals, coves,

sounds and estuaries.

(2) District No. 2, as used in this act, shall in-

clude all lands and waters over which the state of Wash-

ington has jurisdiction, excepting therefrom district

No. 1, as herein defined.

Sec. 3. It shall be unlawful for commercial pur-

poses to fish for or take in the waters of district No. 1, as

herein defined, silver salmon (Oncorhynchus kisutch)

between the first day of November and the fifteenth

day of June of the year following, both dates inclusive.

Sec. 4. It shall be unlawful for commercial pur-

poses to fish for or take in the waters of district No. 1,

as herein defined, chinuwok salmon (Oncorhynchus

tschawytscha) between the first day of November and

the fourteenth day of March of the year following, both

dates inclusive.

Sec. 5. It shall be unlawful for commercial pur-

poses for any person to have in his possession or trans-

port through the waters of district No. 1, as herein

defined, any fresh silver salmon (Oncorhynchus ki-

sutch) taken from said waters or from the waters of

15

the Pacific ocean during the period from the first day

of November and the fifteenth day of June of the year

following, both dates inclusive.

Sec. 6. It shall be unlawful for commercial pur-

poses for any person to have in his possession or trans-

port through the waters of district No. 1, as herein

defined, any fresh chinook salmon (Oncorhynchus

tschawytscha) taken from said waters or from the

waters of the Pacific ocean during the period from the

first day of November and the fourteenth day of March

of the year following, both dates inclusive.

Sec. 7. It shall be unlawful for any person in the

state of Washington engaged in the business of can-

ning, packing, processing, freezing, salting, smoking,

kippering, preserving in ice, or otherwise involved in

dealing in or curing any food fish or shellfish, or in

wholesale selling of food fish or shellfish for commercial

purposes, to have in his possession any silver salmon

(Oncorhynchus kisutch) caught or taken during the

period from the first day of November of any year to

the fifteenth day of June of the following year from the

waters of the Pacific ocean or district No. 1.

Sec. 8. It shall be unlawful for any person in the

state of Washington engaged in the business of canning,

packing, processing, freezing, salting, smoking, kipper-

ing, preserving in ice, or otherwise involved in dealing

in or curing any food fish or shellfish, or in wholesale

selling of food fish or shellfish for commercial purposes,

to have in his possession any chinook salmon (Onco-

rhynchus tschawytscha) caught or taken during the

16

period from the first day of November of any year to

the fourteenth day of March of the following year from

the waters of the Pacific ocean or district No. 1: Pro-

vided, That with respect to the closed season defined in

this act, the director of fisheries, upon due notice and

hearing, and upon investigation, may in accordance

with his judgement, vary any of the opening or closing

dates thereof. Notice of such hearing shall appear in

not less than two issues of a newspaper of general cir-

culation at the state capitol.

Sec. 9. Every person or persons, firm or corpora-

tion operating a fishing vessel of any description used

in the commercial taking or catching of chinook or

silver salmon in offshore waters and the transporting

or bringing the same in and through the waters of the

state of Washington and delivering the same in any

place or port in the state of Washington shall, as a

condition of doing so, obtain a permit from the director

of fisheries. The fee for said permit shall be ten dol-

lars for the vessel and ten dollars for each member of

the crew thereof, such permit to be effective during the

fiscal year in which issued: Provided, That persons

operating fishing vessels licensed under RCW 75.28-

.080 and RCW 75.28.100 shall not be required to pay

any permit fees hereunder: Provided further, That

if it appears to the director of fisheries, after investiga-

tion, that the operation of such vesse! under such permit

tends to result in the impairment, depletion, or destruc-

tion of the salmon resource and supply of this state and

in bringing into this state salmon products prohibited

17

by law, in that event, the director under such regula-

tions and terms as he may prescribe may revoke said

permit to use and operate such boat in the waters of

this state, and in the event of the revocation of such

permit, the further operation of such vessel as herein-

above set forth shall then be unlawful.

Sec. 10. The several provisions of this act are

hereby declared to be separate and severable, and if any

clause, sentence, paragraph, subdivision, section or

part thereof shall, for any reason, be adjudged invalid,

or the applicability thereof to any person, circumstance

or product adjudged invalid, such judgment shall not

affect, impair or invalidate the remainder of the act,

and the applicability thereof to other persons, circum-

stances or products shall not thereby be affected, but

such judgment, if any, shall be confined in its opera-

tion to the particular clause, sentence, paragraph, sub-

division, section or part thereof directly involved in

the controversy in which such judgment shall have been

rendered.

Sec. 11. Nothing herein shall be construed to re-

strict or impair the authority of the director of fish-

eries consistent with and pursuant to the provisions of

this act from issuing and publishing such regulations

as, after investigation, he may deem necessary to ad-

minister this act and to effectuate its purposes, or to

administer and effectuate all other acts governing or

affecting the department of fisheries, nor shall any-

thing herein be construed to restrict or impair the

authority of the director to issue and publish regula-

18

tions he may find necessary under the provisions of -

The Pacific Marine Fisheries Compact. 7

Sec, 12. This act is necessary for the immediate —

preservation of the public peace, health and safety, the _

support of the state government and its existing public”

institutions, and shall take effect immediately.

Passed the Senate March 3, 1953.

Passed the House March 9, 1953.

Approved by the Governor March 17, 1953.

x

APPENDIX B

CHAPTER 207, LAWS OF WASHINGTON OF 1953

(RCW 75.28.080)

“See, 1, A personal commercial fishing license

shall be obtained by each and efery person who takes

or assists in taking any fish or shellfish, except razor

and hard shell clams, from the waters or beaches of the

state for commercial purposes.

The fee for such license is ten dollars per annum. |

* * * * 99 b

CHAPTER 271, LAWS OF WASHINGTON OF 1951

(RCW 75.28.100)

ce * %

Sec. 8. A license is required for each and every

commercial vessel which delivers or lands fish or shell-

fish within the state, for which license there shall be

paid a fee of ten dollars per annum: Provided, Thi :

nothing in this section shall apply to vessels operate

by any person having an oyster or clam farmer’s i-

cense and used exclusively for that purpose. _

* * * * »?