54 SALMON GEAR LIMITATION 



discrimination or, in some cases, a complete prohibition against non- 

 resident fishermen in state waters. Quite properly, such provisions 

 have been held invalid. There is no suggestion, incidentally, that 

 such a distinction be incorporated in the proposal under study here. 

 The other case here discussed, however, did involve a limitation upon 

 number of commercial fishermen which was adopted by Texas in 

 the mid-forties. Since the Texas court held the scheme invalid 

 as violating the state due process clause, the case is discussed here 

 in some detail. The deficiencies of the legislation are sufficiently 

 identified and the differences from the proposal under study here 

 are sufficiently described that the Texas decision can and should 

 be avoided. 



With respect to the particular details by which the legislature 

 may choose to effectuate the limitation upon the number of fishermen, 

 there has been less study, primarily because, at this stage of the 

 proposal, the details have not yet been settled upon. There are, 

 however, certain aspects which, it was felt, could be profitably 

 pursued. 



The first is the assumed provision for a "grandfather clause," 

 to allow those presently licensed to continue to fish over some yet- 

 to-be-determined period of time. As is developed in the analysis, 

 such provisions are generally upheld when under an attack based 

 on the concept of equal protection. Some care will have to be 

 exercised in the detailed provisions of such a clause, but, generally 

 speaking, any reasonable scheme should be valid. 



Other details have not been pursued at length. Depending upon 

 the reactions of the members of the committee to which this is 

 addressed to the detailed recommendations contained elsewhere in 

 this report, certain of the details which might be thought desirable 

 ought to receive further legal analysis. These would include, for 

 example: fa) the "buy-back" of licenses or equipment by the state 

 in order to reduce the number; (b) the specification of the circum- 

 stances under which the licensee should be permitted to transfer his 

 license and of the degree of control the appropriate state body 

 should have over such transfers; (c) the taxes or fees to be charged 

 the licensees either for the license, upon their catches, or upon any 

 other incident of their operation, over and above the present fees and 

 taxes; (d) any specification of the qualifications different from 

 those now required, to include, for example, such items as a showing 

 of a certain financial responsibility and capacity, a certain amount 



