FISHERY INDUSTRIES. 19 



court; also the testimony of E. M. Ball, called by the Government upon trial had in 

 the district court. Both the Government and the defendant waive trial by jury and 

 the defendant admits its corporate existence. 



The facts in the case are easily determined. Moser Bay is an arm of Alitak 

 Bay on the southwesterly shore of Kodiak Island. At the place where the Alaska 

 Packers Association constructed its trap the distance from shore to shore is about 2 

 miles. On the 4th day of May, 1918, the Alaska Packers Association began driving a 

 trap off the north shore of Moser Bay at a point about 3,000 feet from the shore and on 

 a line nearly at right angles with the shore or beach line. The "heart," "pot," and 

 " spiller' ' were first completed and several hundred feet of the ' 'lead" were driven before 

 the defendant corporation began the construction of a trap easterly from the Packers' 

 trap. The defendant liegan the construction of its trap at a point about 900 feet from the 

 shore and on a line nearly at right angles ^dth the shore or beach line. Construction 

 work was begun by the defendant on the 4th of June. The same general plan of con- 

 struction was adopted by both the Packers and the defendant and both drove from 

 deep water toward the shore. The defendant's trap was completed on about the 15th 

 day of June. The Packers' trap with the exception of about 600 feet of the lead nearest 

 the shore was completed on the 7th of June. The work was not continuous, though 

 practically so, the witness Seaborg, "the boss trap man," testifying: 



"We drove pretty much every day, that is, after the ship was discharged. That is, 

 that when we got thi'ough with the lighter I drove a few piles, worldng at it every day 

 a little." 



The work of driving the last BOO feet of the "lead" was completed on the 18th of 

 June. This GOO feet of "lead" swings to the east, toward the defendant's trap, and 

 the shore end is about 150 feet nearer the shore end of defendant's "lead" than it 

 would have been had it continued to the shore on the same line with the rest of the 

 "lead." The distance between the shore end of the Packers "lead" and the shore 

 end of the defendant's "lead " is 952 feet. The distance from the westerly side of the 

 "pot" of defendant's trap to the "lead" of the Packers' trap calculated by a line 

 running at right angles to the "lead " of the defendant's trap is considerably less tlian 

 600 yards. 



The defendant defends on the theory that when it began the construction of its trap 

 it was not within 100 yards endwise of any other trap or fixed fishing appliance and 

 therefore when the Packers' "lead " was driven to a point 100 yards distant from a line 

 drawn from the outside end of defendant's trap at right angles to defendant's "lead" 

 and extending westerly across the course of the Packers' "lead," the Packers must 

 cease ftuther construction in order to keep wthin the provisions of section 262 of the 

 Compiled Laws of Alaska. Section 262 provides: 



"It shall be unlawful to lay or set any drift net, seine, set net, pound net, trap, or 

 any other fishing appliance for any purpose except for pm-poses of fish culture, across 

 or above the tide waters of any creek, stream, river, estuary, or lagoon, for a distance 

 greater than one-third the ^^idth of such creek, stream, river, estuary, or lagoon, or 

 within 100 yards outside of the mouth of any red-salmon stream where the same is 

 less than 500 feet in width. It shall be unlawful to lay or set any seine or net of any 

 kind within 100 yards of any other seine, net, or other fishing appliance which is lieing 

 or which has been laid or set in any of the waters of Alaska, or to drive or construct 

 any trap or any other fixed fishing appliance within 600 yards laterally or within 100 

 yards endwise of any other trap or fixed fishing appliance." 



The position taken by defendant is unique, biit it is not tenable. Congress has said 

 that the waters of any creek, stream, river, estuary, or lagoon shall not be fished with 

 a fixed fishing appliance for more than one-third "of the distance across or above the 

 tide waters of such creek, stream, river, estuary, or lagoon; that a trap or fixed fishing 

 appliance shall not be driven or constructed within 600 yards laterally or within 100 

 yards endwise of any other trap or fixed fishing appliance. It is argued that no right to 

 continue to drive or construct is initiated by beginning to drive or construct. It is 

 true that the statute specifies no period of time within which the trap or fixed fishing 

 appliance must be completed, but the failure to so specify can not be held to mean 

 that no time shall be given. The very nature of the language employed, "to drive 

 or construct," as applied to the thing to be driven or constructed does not contem- 

 plate a completed structure by a single act. Construct means to put together the 

 constituent parts of (something) in their proper place and order; to build; to form; 

 to make, as to construct an edifice; and the spirit and intent of the statute is fully 

 complied with when a trap or fixed fishing appliance once Ijegun and under process 

 of construction is being driven and constructed with such speed as existing conditions 

 reasonably permit. To have fixed a definite period of time irrespective of weather 

 conditions and unavoidable delays would have l^een equally as ol>jectional)le. I 

 take it Congress was not attempting to place a bonus upon specially adapted equip- 



