Oregon Advisory Opinions January 01, 1953: OP 293

Advisory Opinion Text

Fishing with driftnets or setnets for striped bass, shad, perch, flounder or bottom fish in the Umpqua River or its tributaries, will be controlled, until January 1, 1953, by chapter 374, Oregon Laws 1947.

No. 293 April 26, 1947 Fish Commission of Oregon

Dear Sir: In your letter of April 16 you call my attention to Chapter 374, Oregon Laws 1947 (Senate Bill No. 316), and Section 83-572a, O. C. L A., and re­quest my opinion on the following ques­tions which I have numbered for con­venient reference:

1. Is section 83-572a, O. C. L. A. still in force and effect, or has it been replaced, superseded or repealed through impli­cation or otherwise, by a more recently enacted statute and, if so, by what stat­ute or provision of statute?

2. Which of the laws or statutory provi­sions as now on the statute books of the state with respect to or relating to fish­ing in the Umpqua and Bay, or tribu­taries thereof, is controlling?

3. What is the lawful season or seasons thereunder for taking of shad or other anadromous or food fish and by what type of gear, net or other means may they be taken lawfully during each such season in the respective area or waters covered?

4. What, within the meaning or intent of the Act (Chapter 374, Laws 1947) con­stitutes "incidental catch," as used in sections 3 and 4 thereof?

5. What, if any authority over the regula­tion of salmon fishing, as authorized or permitted under said act, is vested in the Game Commission of the State of Oregon, under section 4 thereof?

Chapter 374, Oregon Laws 1947 (Sen­ate Bill No. 316), is an entirely new and complete statute enacted for the pur­pose, as indicated in its title, of "regu­lating fishing in the Umpqua River and its tributaries" and so far as pertinent provides:

"Section 1. It shall be unlawful to take, catch or fish for trout, steelhead trout or salmon at any time with nets, traps, seines or any other method except with hook and line, commonly called angling, in any waters of the Umpqua river or any of its tributaries.

Angling or game fishing shall be subject to the rules and regulations of the game com­mission and the laws of the state of Oregon.

"Section 2. It shall be lawful for any per­sons, firms or corporations, when duly licensed, to take, catch or fish in the Umpqua river or any of its tributaries at any time from one hour before sunrise to one hour after sunset for striped bass with driftnets having a mesh of not less than six inches nor more than six and one-half inches, taut measure; provided, however, that during the period from 6 a. m. on May 10 to 6 a. m. on July 1 of the same year it shall be lawful to take, catch or fish for shad, perch, flounder or bottom fish with driftnets having a mesh of not less than six inches nor more than six and one-half inches, taut measure. It is further provided, that it shall be lawful to take, catch or fish for shad in the waters of Smith river, a tributary of the Umpqua river or bay below the confluence of the north fork of the Smith river with said Smith river from 6 a. m. on May 10 to 6 a. m. on July 1 with setnets having a mesh of not less than six inches nor more than six and one-half inches, taut measure; provided, how­ever, that it shall be unlawful to use such setnets in the waters of Smith river aforesaid between 6 p. m. on Saturday of any week and 6 p. m. on the Sunday following.

"Section 3. It shall be unlawful to take, catch or fish for, or have in possession, any sturgeon, taken, caught or removed from any of the waters of the Umpqua river or any of the bays or tributaries thereof by any means, and it shall be unlawful to take, catch or fish for, or have in possession, any salmon, taken or caught in the waters of the Umpqua river or any of the bays or tributaries thereof except such salmon as may be taken as an incidental catch in fishing operations as pro­vided for in Section 2 of this act.

"Section 4. The game commission of the state of Oregon shall have authority and duty to seize and take for the benefit of the state of Oregon, without remuneration to fisher­men, any trout, steelhead trout, salmon or other game fish taken in nets or commercial gear during legal season except such salmon as may be taken as an incidental catcli in fishing operations as provided for in Section 2 of this act.

* * * *

"Section 11. This act shall terminate on January 1, 1953."

Section 83-572a, O. C. L. A., was en­acted as Chapter 433, L. 1941, as an addition to Chapter 5, title 83, O. C. L. A., originally enacted by Chapter 105, Laws 1921, "to provide for the better protection, preservation and propagation of salmon, shad, sturgeon and other anadromous and food and shell fishes."

While said Chapter 5, title 83, per­tained to all the fish mentioned in its title, section 83-572a had for its sole purpose the "fishing for shad in Smith river and Umpqua river and bay", and reads as follows:

"It shall be lawful to take, catch or fish for shad with driftnets having a mesh of not less than six inches or more than six and one-fourth inches in the Umpqua bay and river below the confluence of Big Mill creek with the Umpqua river near Scottsburg, in Douglas county, from May 1 to June 1 of each year, and in Smith river, a tributary of Umpqua bay, below the confluence of said Smith river with the north fork of Smith river, with driftnets or setnets having a mesh of not less than six inches or more than six and one-fourth inches, from April 20 to June 30 of each year; provided, however, that it shall be unlawful to use any of said fishing appliances aforesaid between 6 p. m. on Saturday of each week and 6 p. m. on Sunday following.

"The season herein provided for the taking of shad in said portion of Umpqua bay and river shall be in addition to any other season by law provided for the taking of such fish in said waters."

Respecting the rights of the State to regulate fishing within its boundaries it is stated in 22 Am. Jur. Fish and Fish­eries, Section 34, pp. 691 and 692:

"The state has the power to regulate fisheries (places to fish) in public and private streams, and to adopt such appro­priate means as may seem best to it for the preservation of edible fish for the benefit of the people; subject only to constitutional provisions against discrimination, and to any valid exercise of authority under the pro­visions of the Federal Constitution. The right of the state to regulate fisheries for the preservation of fish applies not only to edible fish but also to those valuable for any pur­pose. This right to regulate fish and fisheries may be based either on the police power of the state to enact laws designed to increase the industries of the state, to develop its resources, and to add to its wealth, or on the circumstance that the fish in the waters of the state, as well as the game in its forests, belong to the people in their sovereign capacity, and are not the subject of private ownership, except in so far as the people may elect that they shall be. It is not only the right of the state, but also its duty, to preserve for the benefit of the general public the fish in its waters, in their migrations and in their breeding places, from destruction or undue reduction in numbers through the caprice, improvidence, or greed of the riparian proprietors, as well as of trespassers. The state may prohibit the catching of fish within its waters; if it allows the catching, it may regulate it by the imposition of such condi­tions, restrictions, and limitations as it deems needful or proper. The state may prohibit the taking of fish by methods other than those prescribed by law, may prescribe the size of fish taken, * * *."

It is to be noted that both of these statutes relate to fishing for shad in the Umpqua river and its tributaries, and that in the new enactment, chapter 374, no mention or reference whatsoever is made to said section 83-572a. Therefore, with relation to the regulation of shad fishing in the Umpqua river and its tributaries, they are considered to be in pari materia—to pertain to the same subject matter.

It is a general rule of law that the legislature is presumed to know the state of the law relating to the subjects with which it deals, and that regard must be had to other current legislation in pari materia.

It is stated in Volume 2, Sutherland's Statutory Construction, 3rd Edition, Sec­tion 5201, p. 530:

"On the presumption that whenever the legislature enacts a provision it has in mind the previous statutes relating to the same subject matter, it is held that in the absence of any express repeal or amendment therein, the new provision was enacted in accord with the legislative policy embodied in those prior statutes, and they all should be con­strued together."

and on p. 532:

"But if there is an irreconcilable conflict between the new provision and the prior statutes relating to the same subject matter, the former will control as it is the later expression of the legislature."

(See also Winslow vs. Fleishner, 112 Or. 23, 26; Benson vs. Withycombe, 84 Or. 652, 658, 659.) A statute may be intended as tempo­rary merely. This is true where the period during which a statute is to re­main in force is limited at the time it is enacted by fixing the date for its termi­nation. The operation of a statute may be duly suspended by the legislature. Indeed, a valid suspension of a statute must rest upon legislative action. (50 Am. Jur. Statutes, pp. 524 and 525).

It is to be noted that chapter 374, Ore­gon Laws 1947, by its own terms, ex­pressly provides for the ending of its effectiveness: * 'Section 11. This act shall terminate on January 1, 1953," thereby clearly indicating that its operation is intended to be temporary.

UMPQUA RIVER. By section 83-572a it is lawful to fish for shad with driftnets having a mesh of "not less than six inches or more than six and one-quarter inches" at any time from May 1 to June 1 of each year, and then only in that part of the Umpqua river "below the confluence of Big Mill Creek with the Umpqua river near Scottsburg."

But, by chapter 374, Laws 1947, it is lawful to fish for shad with driftnets having "a mesh of not less than six inches or more than six and one-half inches", from 6 a. m. on May 10 to 6 a. m. on July 1, without restriction as to place "in the Umpqua river or any of its tributaries."

SMITH RIVER. By Section 83-572a it is lawful to fish for shad with drift­nets or setnets, having "a mesh of not less than six inches or more than six and one-quarter inches", at any time from April 20 to June 30 of each year in the "Smith river, a tributary of Umpqua Bay, below the confluence of said Smith river with the north fork of Smith river," but "it shall be unlawful to use any of said fishing appliances (either driftnets or setnets) aforesaid between 6 p. m. Satur­day of each week and 6 p. m. on Sunday following."

On the contrary, by chapter 374, Laws 1947, it is lawful to fish for shad with a driftnet without restriction as to place in the Smith river, and with a setnet having "a mesh of not less than six inches or more than six and one-half inches" from 6 a. m. on May 10 to 6 a. m. on July 1, only "below the con­fluence of said Smith river with the north fork of Smith river", but "it shall be unlawful to use such setnets in the waters of Smith river aforesaid between 6 p. m. on Saturday of any week and 6 p. m. on the Sunday following."

There appears to be an irreconcilable conflict between these two statutes be­cause the same act or conduct cannot be lawful and unlawful at the same place and. time and under the same circum­stances. Chapter 374, Laws 1947, there­fore, by implication suspends and renders inoperative, until January 1, 1953, every provision of said Section 83-572a.

Therefore, in answer to your questions 1 and 2, it is my opinion that until January 1, 1953, chapter 374, Laws 1947, being the last expression of the legisla­ture, is controlling over and suspends the operation of said section 83-572a.

In answer to your question No. 3, it is my opinion that in clear and unam­biguous language, the lawful season for taking shad "in the Umpqua river or any of its tributaries", without restric­tion as to place, is with driftnets having "a mesh of not less than six inches nor more than six and one-half inches," from 6 a. m. May 10 to 6 a. m. July 1 of the same year; and that the lawful season for taking shad in that part of the "Smith river, a tributary of the Umpqua river or bay below the conflu­ence of the north fork of the Smith river with said Smith river", with setnets "having a mesh of not less than six inches nor more than six and one-half inches," is from 6 a. m. on May 10 to 6 a. m. on July 1 of the same year; but that it is always unlawful to use such setnets between 6 p. m. on Saturday of any week and 6 p. m. on the Sunday fol­lowing.

Answering your question No. 4, it is my opinion that the word "incidental" in the phrase "incidental catch," as used in sections 3 and 4 of said chapter 374, was intended to be understood in its ordinary meaning, i. e., "1. Happening as a chance or undesigned feature of something else; 2. Liable to happen or to follow as a chance feature or incident." (Webster's New International Dictionary, p. 1257). In other words, any salmon that happened as a chance to become ensnared in nets specified by section 2, for use while fishing for striped bass, shad, perch, flounder or bottom fish, are not to be construed as unlawfully possessed.

Sections 1 and 4 of said chapter 374 must be construed together, because, from the title defining its scope, it is "an act regulating fishing in the Umpqua river and its tributaries." Not only is commercial fishing to be regulated by its terms, but all fishing. The scope of this act is confined to the Umpqua river and its tributaries and nowhere in its provi­sions is there any authorization for the lawful taking or catching of salmon, except as an incidental catch. By section 1 it is plain that salmon are referred to by the legislature as game fish, and the authorization of the game commis­sion in its administration of the provi­sions of said section is confined to seiz­ing and taking such salmon as are game fish. This legislative intendment is fur­ther borne out by the use of the phrase "salmon or other game fish", as used in said section 4.

It is my opinion, therefore, in answer to your fifth and last question, that the authority of the game commission over the regulation of salmon, under said section 4, is confined to such salmon as are defined by the laws of this state to be game fish.

GEORGE NEUNER, Attorney General, By Fred A. Miller, Assistant.

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