Oregon Advisory Opinions December 31, 1948: OAG 48-206 (December 31, 1948)
Collection: Oregon Attorney General Opinions
Docket: OAG 48-206
Date: Dec. 31, 1948
Advisory Opinion Text
OAG 48-206.
Gentlemen: Under date of December 10, 1948, you call attention to the initiative measure entitled "PROHIBITING SALMON FISHING IN COLUMBIA RIVER WITH FIXED APPLIANCES" adopted by vote of the people at the general election, November 2, 1948, and request my opinion upon three questions which I will consider in the order propounded:
Question No. 1. "Do Sections 1, 2 and 3, respectively, of the above mentioned measure, or any other section or provision thereof, prohibit or make unlawful the construction, installation, use, operation or maintenance of a drag seine, a whip seine, a fish trap, a setnet or other fixed appliance within waters of the Columbia River or its tributaries in the state of Oregon for the purpose of catching shad, striped bass, sturgeon or any other species of anadromous or food fish, except salmon, salmon trout or steelhead specifically mentioned in the Act; or prohibit and make unlawful the taking of any of such fishes except salmon, salmon trout and steelhead by said means?"
The measure in question provides in part:
"For an act prohibiting the taking of salmon by the use of drag and whip seines, fish traps and other fixed fishing appliances, in the waters of the Columbia River and its tributaries, * * *
"BE IT ENACTED BY THE PEOPLE OF THE STATE OF OREGON:
"Section 1. It shall be unlawful to construct, install, use, operate or maintain any drag seine in the waters of the Columbia River or its tributaries in the State of Oregon.
"Section 2. It shall be unlawful to construct, install, use, operate, or maintain, within any of the waters of the Columbia River or its tributaries in the State of Oregon, any pound net, fish trap, fish wheel, scow fish wheel, setnet, or weir, or any fixed appliances for the purpose of catching salmon, salmon trout, or steelhead, or to take salmon, salmon trout, or steelhead, by any such means.
"Section 3. It shall be unlawful to construct, install, use, operate, or maintain any whip seine in the waters of the Columbia River or its tributaries in the State of Oregon." (Emphasis supplied)
Section 83-303, O. C. L. A., provides, so far as pertinent:
"Whenever the word 'salmon' is used in any of the laws of Oregon, the same shall be deemed and held to include chinook, silver-sides, steelheads, blueback, sockeye and all other anadromous species of salmon and trout, * * *."
Article IV, section 20, constitution of Oregon, provides in part:
"Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. * * *"
Of this constitutional requirement the Court, in Malloy v. Marshall - Wells Hardware Co., 90 Or. 303, 354, 355, said:
"* * * The title of the act is a part of the statute and can be looked to for the purpose of ascertaining the meaning of the statute; and, moreover, an act adopted by the people in the exercise of the initiative as well as an act passed by the legislative assembly must comply with the requirements of Article IV, Section 20, of the State Constitution: Turnidge v. Thompson, supra." (89 Or. 637) (Emphasis supplied)
The title to an act defines its scope. It is to be observed, therefore, that the title of this act is particular and its scope is restricted to the prohibition of the "use" of certain things for a certain purpose. The forbidden "use" is the employment (43 Words and Phrases, Perm. Ed. 1948 Pkt. Pt. p. 99) of " drag and whip seines, fish traps and other fixed fishing appliances, in the waters of the Columbia River and its tributaries" for one particular purpose, namely, "the taking of salmon." The constitution, by article IV, section 20, made the title of an act the exclusive index of what shall have operation, and it can contain no valid provision beyond the range of the subject there stated. The body of an act can be no broader than its title. 1, Sutherland, Statutory Construction (3rd), §§ 1719 and 1720; State v. Perry, 77 Or. 453, 456; Peterson v. Lewis, 78 Or. 641, 654.
Clearly, the use of the fishing gear specified in this statute is not prohibited for any other purpose than "the taking of salmon". It follows, and it is my opinion, that the answer to your first question is in the negative.
Question No. 2. "Are all the restrictions and prohibitions set up or provided for under the provisions of Sections 1, 2, and 3 above mentioned within the limitations and purview of the title of the Act? If not, are they or any of them valid under the law?"
In arriving at a conclusion in response to this question, our consideration must be predicated upon the terms of this entire statute and what it authorizes. We must also keep in mind at all times that the lawmakers are not to be presumed to have done a vain thing by its enactment (Allen v. Multnomah County, 179 Or. 548, 561), and that if said statute is fairly susceptible of two constructions, one of which will give effect to it, while the other will defeat it, the former is to be preferred. 50 Am. Jur., Statutes, § 357; Eastern and Western Lumber Co. v. Peterson, 124 Or. 112, 119; Camas Storage Co. v. Kozer, 104 Or. 600, 606.
Section 2-216, O. C. L. A., provides as follows:
"In the construction of a statute, * * * the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all." (Emphasis supplied)
In Banfield v. Schulderman, 137 Or. 167, 177, 178, the Court said concerning section 2-216:
"It is likewise fundamental that various parts of a statute should be read so that all may, if possible, have their due and conjoint effect without repugnancy. See Spencer v. Portland, 114 Or. 381 (235 P. 279). So, in the construction of a statute, the intention of the legislature is to be ascertained and effectuated, if possible: Oregon Code 1930, § 9-215 [§ 2-217, O. C. L. A.]. This rule has been applied over and over again by our court. Kirk v. Farmers' Union Grain Agency, 103 Or. 43 (202 P. 731); State ex rel. v. Slusher, 119 Or. 141 (248 P 358). In other words, every statute must be construed with reference to the object intended to be accomplished by it. In this connection, we direct particular attention to the following excerpt from 1 Federal Statutes Annotated, 78:
"'It has been laid down again and again that "a thing which is within the intention of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers."'" (Emphasis supplied)
The question of the adoption or rejection of this initiated enactment was submitted to the people at the regular general election, November 2, 1948, under the comprehensive ballot title providing, so far as pertinent, as follows:
"PROHIBITING SALMON FISHING IN COLUMBIA RIVER WITH FIXED APPLIANCES---Purpose: Making it unlawful to construct or maintain in waters of Columbia river or tributaries, any pound net, fish trap, fish wheel, scow fish wheel, setnet, weir, drag seine, whip seine, or other fixed appliance, for catching salmon, salmon trout or steelhead; defining a setnet and seine. * * *
"Vote YES or NO. * * * Yes, I vote for the proposed law. * * * No, I vote against the proposed law." (Emphasis supplied)
It appears obvious from the plain wording of the above-quoted ballot title that the voter had within his mental grasp the means of knowing the full purport of the measure he was to adopt or reject before he indicated his choice and that by its adoption he said, in substance: "'Yes, I vote for the proposed law', to make it unlawful, not only 'to construct or maintain in waters of Columbia river or tributaries, any * * * fixed appliance, for catching salmon', but, also, to make it unlawful for such purpose, to use any 'drag seine' or 'whip seine'." The prohibition of the use of drag seines and whip seines, both by the title of the act and in the ballot by which it was enacted, is, manifestly, also within its purpose and intent.
It is stated in 2, Sutherland, Statutory Construction (3rd) § 4703, that:
"* * * A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. * * *"
It is also a well established rule that statutes are in pari materia which relate to the same thing or class of things which are not in substance inconsistent with each other. Ahren v. Settergren, 180 Or. 287, 291.
To construe sections 1, 2 and 3 of the initiative measure in pari materia so as to determine their import, necessarily incorporates into sections 1 and 3 thereof the phrase "for the purpose of catching salmon," to be found in section 2. All of these sections relate to the one purpose and intent of the act specified in its title, namely, the prohibited "use" of "drag and whip seines" and "fixed fishing appliances" for "the taking of salmon." Section 1 relates to drag seines, the first prohibited use. Section 2 relates to fixed appliances, and section 3 to whip seines. Each section provides for the prohibited use of a different appliance. All three sections are within the scope of the title of the act. All are within the purpose and intent of the plain wording of the title of the ballot upon which each voter indicated his choice. Beyond cavil, the substance of all three of these sections is the same, i. e., "for the purpose of catching salmon." There is no inconsistency between them and all can stand together.
To construe the literal omission of the phrase "for the purpose of catching salmon" from sections 1 and 3 so as to render said sections inoperative and meaningless is to presume that the lawmakers by their adoption of said sections did a vain thing. Statutory construction allows of no such presumption. 2, Sutherland, Statutory Construction (3rd) § 4510. All reasonable doubt must be resolved in favor of the validity of this statute and before it may be concluded that there is an inconsistency between its provisions, such inconsistency must appear palpably plain. Calder v. Orr, 105 Or. 223, 230.
Viewing said statute in its entirety, as we must, it seems clear that each of its questioned sections was enacted to effectuate the will of the lawmaker as to the particular purpose set forth therein in furtherance of the accomplishment of the object of the act. By no strain of the rules of construction can the purpose of section 1 and 3 be construed to have been enacted for other than as indicated in section 2, viz., to prohibit the "use" of the named appliances "for the purpose of catching salmon." Not to incorporate this last quoted phrase into sections 1 and 3 is to defeat the indubitable intent of the lawmakers. Certainly, the words of said phrase are, "in substance at least", contained in each of said sections. Cabell v. Cottage Grove, 170 Or. 256, 272.
As indicated in discussing your first question, it is the "use"---the employment---of certain seines and fixed fishing appliances for the purpose of taking salmon that is the substance of this initiated act. It is my opinion, therefore, that to do either, construct, install, use, operate or maintain any designated seine or appliance in the waters of the Columbia river or its tributaries for that particular purpose, constitutes a forbidden use and is within the purview of the act.
Question No. 3. "Are setlines as constituted and provided for under 83-615e, O. C. L. A., (Chapter 319, L. 1947) to be construed or considered as 'a fixed fishing appliance' within the meaning and intent of the statute in question?"
Obviously, section 83-615e, O. C. L. A., referred to relates only to licenses for the "taking of sturgeon." However, if such setlines as those referred to in said section are "fixed", or made fast, it is my opinion that their use would be a "fixed appliance" under the initiated measure in question, if used in the waters of the Columbia river or its tributaries "for the purpose of catching salmon".