(dissenting)—I do not think this case can properly be decided upon a general demurrer when the basic objection to the petition is that some of the allegations may be construed as conclusions rather than ultimate facts. Anyone who has ever drawn a pleading calling into question the constitutionality of a statute or the proper construction to be given it has realized the difficulty in expressing himself so as not to be met with the claim that he has pleaded conclusions rather than facts. When a pleading is so challenged, the pleader should be given the opportunity to correct by amendment.
The petition in this case seeks to protect the rights the petitioner claims to have to profitably engage in commercial salmon fishing against destructive encroachment by respondent by use of a device commonly called a “reef net.” It is alleged in the petition that the device is in fact a fixed appliance and the use of it for taking and catching salmon is made unlawful by RCW 75.12.060. Inasmuch as licenses. may be issued for reef nets to be used for the taking of and catching food fish and that salmon is in such category, it is necessary that petitioner plead and establish as a fact that the appliance of which complaint is made, though commonly termed a reef net, is not such at all, but is such a fixed ap*373pliance as is banned by RCW 75.12.060. The petition, when tested by usual rules relating to a general demurrer, is sufficient. The petitioner is entitled to submit evidence showing the construction and fish-catching qualities of the appliance, so that the court may find as a fact whether it creates the same or a similar evil with reference to salmon as do the devices or appliances enumerated in the prohibitory statute (RCW 75.12.060).
It may be, as was suggested at the hearing before the chief justice on the application for a writ of certiorari, that petitioner will be unable to establish the facts necessary to bring him within the protection of RCW 75.12.060, but his petition, when properly construed, alleges sufficient facts to justify the admission of evidence directed to that end.
The demurrer to the petition should have been overruled.
November 18, 1954. Petition for rehearing denied.