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NIELSEN V. CALIFORNIA, 212 U. S. 315 (1909)

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U.S. Supreme Court

Nielsen v. California, 212 U.S. 315 (1909)

Nielsen v. California

No. 593

Argued January 18, 19, 1909

Decided February 23, 1909

212 U.S. 315


The concurrent jurisdiction given by Congress to the States of Oregon and Washington over the Columbia River by the Acts of March 2, 1853, c. 90, 10 Stat. 172, and of February 14, 1859, c. 33, 11 Stat. 383, extends to civil as well as criminal matters, and is broadly a grant of jurisdiction to each state. Wedding v. Meyler, 192 U. S. 573.

In determining the effect of a grant of concurrent jurisdiction, this Court confines itself to the precise questions presented.

Where two states have concurrent jurisdiction, the one first acquiring jurisdiction may prosecute and punish for an act which is malum in se and punishable by the laws of both states, and the judgment is a finality, so that the person prosecuted cannot be again tried in either state. But this rule does not apply to those acts which are prohibited in only one of the states.

Where two states have concurrent jurisdiction over the same territory which is partly located in one state and partly in the other, one state cannot prosecute a person for an act malum prohibitum by its own laws, and which was committed in territory within the other state by authority of the latter, and so held that one holding a purse net license from the State of Washington cannot be prosecuted for using such net on the Washington side of the Columbia River in the courts of Oregon for violating the statutes of that state prohibiting the use of such nets.

Quaere whether such person could be prosecuted in the courts of Oregon for using such nets on the Oregon side of the river, and quaere whether, where concurrent jurisdiction exists, prosecutions should be in the name of both states.

95 P. 720 reversed.

Plaintiff in error was convicted in a justice's court of the Precinct of Astoria, Clatsop County, Oregon, of maintaining chanroblesvirtualawlibrary

Page 212 U. S. 316

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 P. 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, c. 90, 10 Stat. 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, c. 33, 11 Stat. 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 first section of which is as follows:

"SEC. 1. It shall hereafter be unlawful to operate or maintain

Page 212 U. S. 317

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 second section makes one violating any of the provisions of the act guilty of a misdemeanor, and prescribes the penalty. Sess.Laws Oregon 1907, p. 154. On the other hand, Washington passed an act (Sess.Laws Wash., 1899, p. 194) the second 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 section 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 section 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. chanroblesvirtualawlibrary

Page 212 U. S. 319

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