OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF FISHERIES ‑- NONRESIDENT COMMERCIAL FISHING LICENSES

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF FISHERIES ‑- NONRESIDENT COMMERCIAL FISHING LICENSES.

Fees that are assessed for the necessary licenses permitting use of commercial fishing vessels in this state are to be predicated upon the residency of the owners of the vessels rather than the operators.

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                                                                   April 26, 1962

Honorable George C. Starlund
Director, Department of Fisheries
4015 20th Avenue West
Seattle 99, Washington

                                                                                                              Cite as:  AGO 61-62 No. 125

Dear Sir:

            By letter, previously acknowledged, you have requested an opinion of this office on a question which we paraphrase as follows:

            Are the fees that are assessed for the necessary licenses permitting use of commercial fishing vessels in this state to be predicated upon the residency of the operators of those vessels rather than the residency of the owners?

            We answer the question in the negative.

                                                                     ANALYSIS

            The various licenses required of those who desire to indulge in one or more of the several aspects of the commercial fishing industry in this state are set forth in chapter 75.28 RCW.  Failure to procure and have the necessary license when engaging in one of the various occupations so covered would subject an individual to prosecution for a gross misdemeanor by RCW 75.28.010.

            We are here concerned with those licenses which, for purposes of this discussion, are best described as permitting the use of commercial fishing vessels.  The fees for such licenses are now determined by the type of gear that is intended to be employed upon a particular vessel.  Different fees are required by various statutes according to the gear to be used.  For instance, RCW 75.28.130 states:

            "The fee for all licenses prescribed in this chapter employing troll lines in the  [[Orig. Op. Page 2]] taking of fish and shellfish shall be seventeen dollars and fifty cents per annum for residents and thirty-five dollars per annum for nonresidents.  Each license shall entitle the licensee to use six or less troll lines."

            Similar requirements exist for those who intend to use gill nets (RCW 75.28.140) and drag seines (RCW 75.28.170) to name but two.

            The fee assessed is greater in each instance for nonresidents than for residents.  Your query is directed to whose residence determines the license fee for use of a commercial vessel according to the type of gear:  the residence of the operator of the vessel or the owner.

            The problem involves the application and interpretation of various statutes.  The object of construction or interpretation is to give effect to the intention of the legislature.  Graffell v. Honeysuckle, 30 Wn. (2d) 390, 191 P. (2d) 858 (1948).  To determine the legislative intent, the context of the applicable legislation itself should be initially looked to since that intention should be deduced, if possible, from what the legislature said.  Hatzenbuhler v. Harrison, 49 Wn. (2d) 691, 306 P. (2d) 745 (1957).

            Looking to the applicable statutes, we find that prior legislation aids in explaining our conclusion.  In theGraffell case, supra, our court stated at page 399:

            "In construing statutes which re‑enact [[reenact]], with certain changes, or repeal other statutes, or which contain revisions or codification of earlier laws, resort to repealed and superseded statutes may be had, and is of great importance in ascertaining the intention of the legislature, for, where a material change is made in the wording of a statute, a change in legislative purpose must be presumed. . . ."

            The fisheries code, Title 75 RCW, was re‑enacted [[reenacted]]and codified into its current, general form by chapter 12, Laws of 1955.  Chapter 212, Laws of 1955, contained certain amendments and new sections of that codification.  Section 3 of the latter enactment, or RCW 75.28.060, stated:

            "All fishing gear licenses issued under the provisions of this title shall be nontransferable, and it shall be unlawful for any  [[Orig. Op. Page 3]] gear which is licensed as herein specified to be operated or caused to be operated by any person other than the licensee or an agent or employee of the licensee.  In the event the gear is operated by a nonresident, the gear shall be required to be licensed as nonresident gear and the fees provided for nonresidents shall be paid for such license.  All licenses for fishing gear issued under the provisions of the fisheries code shall be carried in the possession of the licensee or authorized representative of the licensee who shall be in charge of the operation of such gear.

            "It shall be unlawful for any person to operate or have aboard any commercial fishing vessel more than one type of lawful salmon fishing gear which cannot lawfully be used in fishing for personal use, except as the director of fisheries may otherwise provide."  (Emphasis supplied.)

            The statutes relating to the various types of gear then, as now, prescribed larger fees for nonresidents than for residents, as previously described.  RCW 75.28.060,supra, required that residency of the operator determined which fee should be assessed.

            Section 75.28.100, chapter 12, Laws of 1955, required a license for every commercial vessel landing fish in this state, among other things.  This license requirement was deleted by amendment in 1959, while the remainder of the statute was left intact.  See, § 9, chapter 309, Laws of 1959.

            Also, § 8, chapter 309, Laws of 1959, amended RCW 75.28.060 to read as follows:

            "All commercial fishing licenses provided for in this chapter shall be transferable.  It shall be unlawful for any license to be operated or caused to be operated by any person other than the licensee or an agent or employee of the licensee.  In the event a commercial license is transferred from a resident of the state of Washington to a nonresident the transferee shall be required to pay the difference between the fees for  [[Orig. Op. Page 4]] a resident and nonresident licensee."

            Not only did the legislature change its policy regarding the transferability of commercial licenses in 1959, but it specifically deleted the above‑emphasized language in RCW 75.28.060 that the fees for gear licenses were to be assessed on the basis of the residency of the operator of the gear.  At the same time a new section was added to the fisheries code which states:

            "Every owner of a commercial fishing vessel shall obtain an annual commercial fishing license, not otherwise provided for in this chapter, for the taking of fish and shellfish within the state of Washington, provided that licensed oyster and clam farmers are not subject to this section.  The fees for commercial fishing licenses required in this section shall be in the amounts set forth in this chapter prescribed by the type gear employed in the taking of food fish and shellfish."  Section 6, chapter 309, Laws of 1959; RCW 75.28.087.  (Emphasis supplied.)

            The various statutes relating to types of gears were likewise amended in chapter 309, but only the amounts of the fees were changed.  (See §§ 10 through 25, chapter 309, Laws of 1959.)  Since the owner of a vessel is now to obtain the license, the fee for which is assessed according to the type of gear, and the statutes relating to types of gear state different fees for residents and nonresidents, it appears that the residence of the owner is determinative of the fee to be assessed.

            Attention is also directed to § 2, chapter 171, Laws of 1957, which added a new section to chapter 75.28 RCW and stated:

            "A separate gear license, as provided in this chapter, for a gill net, a drag seine, a purse seine, a reel or drum purse seine, or a reef net, and a separate vessel license, as provided in RCW 75.28.100, for a commercial fishing vessel shall be required in each licensing district when such gear and vessel are used for lawful fishing for salmon therein.  The gear and vessel license fees for such fishing in one district only shall be in the amounts as set forth in this chapter.  Such license fees  [[Orig. Op. Page 5]] for such fishing in more than one district shall be, in each such additional district, three times the amounts required for fishing in one district only:  Provided, That additional licenses shall not be required for fishing in more than one district for species of fish other than salmon."

            This statute was amended by § 3, chapter 309, Laws of 1959, which is codified as RCW 75.28.013, as follows:

            "Every owner of a commercial fishing vessel shall obtain an annual commercial salmon fishing license, for each licensing district, used in the lawful commercial taking of salmon therein.  The fees for such commercial salmon fishing license shall be in the amounts as set forth in this chapter prescribed by the type of gear employed in the taking of food fish and shellfish.  The license fees for such fishing in one district only shall be in the amounts as set forth in this chapter.  Such license fees for such fishing in more than one district shall be, in each such additional district, three times the amounts required for fishing in one district only, except such license fees for fishing in an additional district shall be two times the amounts required for fishing in one district, where such additional district is a joint jurisdictional waters district:  Provided, That additional licenses shall not be required for fishing in more than one district for species of fish other than salmon."  (Emphasis supplied.)

            Again, the legislature required that the owner of a vessel obtain a certain type of license, the fee for which is to be assessed according to the terms of the statutes regarding types of gear.  These latter statutes dictate different fees for residents and nonresidents.  We find no mention, as existed prior to 1959, that the residence of operators has any bearing on which license fees should be assessed.

            Accordingly, we conclude that the legislature through passage of chapter 309, Laws of 1959, changed its policy as to whose residence  [[Orig. Op. Page 6]] should be determinative of the license fees here involved.  The residence of the owner of the vessel is the proper basis.

            We trust that this will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ERNEST M. FURNIA
Assistant Attorney General