96 tJ. S. BUREAU OF FISHERIES 



Ball, individually and as Assistant Commissioner of Fisheries; George 

 D. Beaumont, individually and as United States marshal, first 

 division; Arthur G. Shoup, individually and as United States attorney; 

 and all and singular the deputies, assistants, and agents of each and 

 all of the parties above named," asked that the defendants and each 

 of them be permanently enjoined from enforcing the provision of law 

 in regard to opening of heart walls of traps in the manner described 

 in the bureau's instructions to its employees, and from instituting 

 prosecutions for failure to open heart walls of traps in such manner u. 

 they were opened in the manner previously employed. 



The case was heard July 10 in the district court at Juneau, and on 

 July 11 Judge Reed denied a temporary restraining order. A memo- 

 randum opinion in the matter was rendered on July 31, 1924, by 

 Judge Reed, in which he summarized the case as follows: 



The proposition simply amounts to this: The complainants claim that the 

 methods heretofore used by them in opening the heart walls of traps comply with 

 the terms of the statute. The contention is made in the face of an adjudication 

 interpreting the statute otherwise by the circuit court of appeals; that the in- 

 terpretation of the statute and of the adjudication thereof by the circuit court of 

 appeals and by the prosecuting officers is erroneous, and that by not complying 

 therewith they are not committing a crime; and that therefore a court of equity 

 has jurisdiction to restrain the prosecuting officers from enforcing the statute as 

 interpreted by the circuit court of appeals and by the prosecuting officers. 



The court held that: 



The authorities seem to be that no injunction will lie against prosecuting 

 officers of the Government to restrain them from enforcing a constitutional 

 criminal statute, even though, in attempting to enforce it, such prosecuting 

 officers have misconstrued its effect. 



* * * I am of the opinion that the motion for the temporary injunction 

 should be denied, especially as to the United States attorney and his assistants, 

 and as to E. M. Ball, of the Bureau of Fisheries, and his assistants, for the reason 

 that I am not convinced that the construction placed upon the statute by the 

 Bureau of Fisheries and the United States attorney is not correct. 



I have carefully examined the records in the Thlinket case and am of the 

 opinion that the cjuestion whether the method of opening the heart walls, as 

 claimed by complainant to be sufficient, was directly before this court and the 

 court of appeals. I am confident that the circuit court of appeals and this court 

 had the manner of opening the heart walls, as contended for by the complainant, 

 directly before it; and I am convinced that the V-shaped opening was decided'by 

 the circuit court of appeals not to be sufficient opening. * * * 



That it is impossible to construct traps so that the opening of 25 feet in the 

 heart walls shall extend to the bottom is also a questionable statement. The 

 assistant commissioner of the Bureau of Fisheries, Mr. Ball, testified that in the 

 year 1919 he visited traps so constructed. The present traps of complainant may 

 not have been constructed so that it was possible to make an opening 25 feet in 

 width from the top to the bottom of the heart walls, and this construction may 

 have been acquiesced in by the Bureau of Fisheries; but that does not afford any 

 reason for construing the law so as to fit such cases: I am confident, however, 

 that traps can be constructed so as to make the opening in the heart walls required 

 by the statute; that it is neither impossible nor extremely difficult, though it 

 may be less convenient than the method contended for by the complainant. 



While at the present time I am not prepared to say that in all cases in order to 

 comply with the statute that a section of the body of the webbing or net 25 feet 

 in length of the heart walls next to the pot on either side shall be lifted or lowered 

 and that the opening thereby made shall extend to the bottom of the trap at the 

 same width, I do believe that that is, and should be, the proper construction of 

 the statute. I base my belief on the declared purpose of the statute — the 

 conservation of the fisheries of Alaska — that such construction of the statute 

 would not only better accomplish that object but that it is a reasonable con- 

 struction of the statute, and the only reasonable construction. Moreover, it will 

 give a standard to which trap fishermen must adhere. 



