MOORE v. PURSE SEINE NET

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District Court of Appeal, First District, Division 2, California.

MOORE et al. v. PURSE SEINE NET et al.*

Civ. 11319

Decided: January 31, 1940

Alfred T. Cluff and Sawyer & Cluff, all of Los Angeles, and Arch E. Ekdale, of San Pedro, for claimants and appellants. Earl Warren, Atty. Gen., and Paul D. McCormick, Deputy Atty. Gen., for petitioners and respondents.

The petitioners sued to have adjudged forfeited to the State Fish and Game Commission a purse seine net used by the owners unlawfully for fishing in the waters of the state. The petitioners had their judgment.

The single question stated by appellants in their opening brief is whether the state courts have jurisdiction of the proceeding. Asserting that the fishing net was a part of the “apparel and furniture” of a seagoing vessel, the appellants advance the argument that the federal courts alone have jurisdiction of such forfeiture proceedings. Section 845 of the State Fish and Game Code (St.1933, p. 471) provides for proceedings in the state superior courts leading to the forfeiture, sale or destruction of nets in violation of the terms of the code. No provision is made for such proceedings in the federal courts, hence, the question here is whether the code sections are constitutional. Appellants concede the state's power to regulate and control fishing and to forfeit the net, but they state that the forfeiture is a “cause of admiralty cognizance”, and hence, that the state courts have no jurisdiction. The Moses Taylor, 4 Wall. 411, 18 L.Ed. 397, and similar cases are cited holding that maritime contracts and torts are exclusively within maritime jurisdiction. We do not find that any of these cases have any bearing upon the question before us. The controlling authority is Smith v. Maryland, 59 U.S. 71, 18 How. 71, 15 L.Ed. 269, involving a state statute providing for the forfeiture of a scoop or drag used for catching oysters within state waters. The point involved was whether the statute conflicted with the federal jurisdiction in admiralty. At page 76 of 18 How., 15 L.Ed. 269, the court says: “It was also suggested that it is repugnant to the 2d section of the 3d article, which declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction [U.S.C.A. Const.]. But we consider it to have been settled by this court, in United States v. Bevans, 3 Wheat. [336], 386 [[[[4 L.Ed. 404], that this clause in the Constitution did not affect the jurisdiction, nor the legislative power of the States, over so much of their territory as lies below high water mark, save that they parted with the power so to legislate as to conflict with the admiralty jurisdiction or laws of the United States. As this law conflicts neither with the admiralty jurisdiction of any court of the United States conferred by Congress, nor with any law of Congress whatever, we are of opinion it is not repugnant to this clause of the Constitution.” To the same effect are Manchester v. Massachusetts, 139 U.S. 240, 260, 11 S.Ct. 559, 35 L.Ed. 159; and Miller v. McLaughlin, 281 U.S. 261, 50 S.Ct. 296, 74 L.Ed. 840. This language is found on page 264 of the latter decision in 281 U.S., 50 S.Ct. page 297, 74 L.Ed. 840: “The claim under the Fourteenth Amendment is also groundless. A state may regulate or prohibit fishing within its waters, Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159, * and, for the proper enforcement of such statutes, may prohibit the possession within its borders of the special instruments of violation, regardless of the time of acquisition or the protestations of lawful intentions on the part of a particular possessor.” (Citing cases.)

The supreme power of the state to regulate and control fishing within its territorial waters cannot be denied. Bayside Fish Flour Company v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772.

For these purposes the state has policing jurisdiction of these waters, and to accomplish the end may enact such reasonable police regulations as it may deem proper. Thus the state may prohibit the use of dynamite or fire arms for taking fish within its waters, and may seize and confiscate such articles if necessary to make its regulations effective. The code sections fixing the procedure for the forfeiture of nets unlawfully used in fishing within its territorial waters are justified upon the accepted doctrine that the power to make regulations includes the power to enforce them. In such legislation there is no conceivable conflict with the admiralty jurisdiction of the United States.

It is argued that the petition is insufficient because it does not specifically allege that the net was used “in taking fish”. The charging part of the petition is that it was used “wilfully and unlawfully * contrary to the provisions of the existing statutes * in violation of the provisions of section 842 of the Fish and Game Code. *” This is not a criminal proceeding. The pleading meets all the requirements of section 845 of the Fish and Game Code. The petition acquainted the owners with the nature of the proceeding. It also stated the date and place of the alleged violation, the statute claimed to have been violated, and the character of the relief sought, namely, the forfeiture of the net. Such notice was all that the statute required. People v. One 1933 Plymouth Sedan, 13 Cal.2d 565, 569, 90 P.2d 799.

There is no merit in the contention that this court is without jurisdiction to hear the cause. The appeal was taken to the District Court of Appeal of the Second Appellate District. That court, deeming that the cause was in equity, transferred it to the Supreme Court. That court transferred the cause here for determination. The appellant now contends that the cause is not one in equity, that jurisdiction of the appeal lay in the District Court of Appeal of the Second District, and that its transfer by that court to the Supreme Court was therefore void. Under section 4c of article VI of the Constitution the Supreme Court has power to transfer any cause “pending” before it, or any cause “pending before a district court of appeal” to any other district court of appeal for hearing and decision. Under section 4a a district court may transfer a cause to the supreme court if the appeal was not taken to the “proper” court. Hence, if the order of transfer from the District Court to the Supreme Court was void because the cause was not in equity, then the order was ineffective and the cause was still “pending” in the district when transferred here by the Supreme Court. If that transfer was not void, but voidable for error, it has become valid by the lapse of the sixty-day period. If the original transfer to the Supreme Court was valid, then, too, the transfer here from the latter court was in accord with the constitutional provision. Any descriptive matter in the order of transfer is immaterial so long as the cause is identified and the purpose of the order is within the court's jurisdiction.

The judgment is affirmed.

NOURSE, Presiding Justice.

We concur: STURTEVANT, J.; SPENCE, J.