# Petition for Writ of Certiorari — Frach v. Schoettler

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1955
- **Citation:** 350 U.S. 838

## Text

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. _

* * * * »?

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_0106%3A1. Public record. Not legal advice.