Nielsen v. Oregon

Plaintiff in error was convicted in a justice's court of the precinct of Astoria, Clatsop county, Oregon, of maintaining and operating a purse net on the Columbia river, contrary to the statutes of Oregon. This conviction was, by proper proceedings, taken to the supreme court of the state and the judgment affirmed. 95 Pac. 720. From that decision the case has been brought here on error.

According to the agreed statement of facts, plaintiff in error was an actual and bona fide resident and inhabitant of the state of Washington and a citizen of the United States. He had a license from the Fish Commissioner of Washington to operate a purse net on the Columbia river, and was on said river, within the limits of the state of Washington, operating such a purse net at the time he was arrested and prosecuted in the courts of Oregon.

By § 1 of the act of Congress of March 2, 1853 (chap. 90, 10 Stat. at L. 172), all that part of the territory of Oregon lying north of the 'main channel of the Columbia river' was organized into the territory of Washington, and by § 21 of the same act it is provided 'that the territory of Oregon and the territory of Washington shall have concurrent jurisdiction over all offense committed on the Columbia river, where said river forms a common boundary between said territories.' Section 1 of the act of Congress admitting Oregon into the Union (act of Feb. 14, 1859, chap. 33, 11 Stat. at L. 383), after describing in detail the boundaries of the state, provides, 'including jurisdiction in civil and criminal cases upon the Columbia river and Snake river, concurrently with states and territories of which those rivers form a boundary in common with this state.' And in § 2 it is said, 'the said state of Oregon shall have concurrent jurisdiction on the Columbia and all other rivers and water bordering on the said state of Oregon so far as the same shall form a common boundary to said state and any other state or states now or hereafter to be formed or bounded by the same.'

The legislative assembly of Oregon passed an act, the 1st section of which is as follows:

'Sec. 1. It shall hereafter be unlawful to operate or maintain within any of the rivers of this state or of the Columbia river, or in the Pacific ocean within 3 miles of the mouths of any of the rivers of this state, or of the Columbia river, any purse net or other like seine for the purpose of catching or taking salmon or other anadromous fish or sturgeon.'

The 2d section makes one violating any of the provisions of the act guilty of a misdemeanor, and prescribes the penalty. Or. Sess. Laws 1907, p. 154. On the other hand, Washington passed an act (Wash. Sess. Laws 1899, p. 194) the 2d section of which reads as follows:

'Sec. 2. The use of pound nets, traps, weirs, fish wheels, and other fixed appliances, and purse nets, drag seines, and other seines for catching salmon, is hereby authorized in all the waters of this state wherein the same is not prohibited by § 1, subject to the regulation and license hereinafter provided for or otherwise required by law, and the use of the set nets, gill or drift nets, subject to said license and regulation for said purpose, is authorized in all the waters of this state, except as otherwise provided by law.'

The prohibition in § 1 referred to does not include the Columbia river. Section 6 of the same act fixes the license fees for all first-class purse seines at $50 and all second-class purse seines at $25.

Messrs. E. C. Macdonald, C. C. Fulton, John D. Atkinson, S. H. Piles, W. P. Bell, H. M. Brooks, and J. B. Alexander for plaintiff in error.

Messrs. A. M. Crawford, I. H. Van Winkle, and Henry H. Gilfrey for defendant in error.

Statement by Mr. Justice Brewer:  Mr. Justice Brewer delivered the opinion of the court: