56 SALMON GEAR LIMITATION 



lative enactment, unless its repugnancy to the constitution clearly 

 appears or is made to appear beyond a reasonable doubt." 



The next step for analysis is thus made clear: What line or lines 

 of constitutional attack ought to be anticipated? To answer this, 

 take for a moment the position of the attacker: What aspects of the 

 scheme seem most vulnerable? Since constitutional requirements 

 are frequently nothing more than the expression of the requirements 

 of our society in abstract terms, it might be helpful first to look at 

 the problem in lay terms: Is there something about a restrictive 

 scheme which might be unpalatable? Here the layman looks at the 

 problem in a highly personal way, in asking how would this legis- 

 lation affect him. Most apparently, it would make it more difficult 

 than before to become a commercial fisherman; or, if he is now 

 fishing, could he continue? Or, to put the matter slightly differently, 

 what is going to determine whether he can fish? And on what basis 

 will the decision be made, for example, that he can fish but the 

 next applicant may not be able to, or vice versa. Is it fair to make 

 this distinction among persons? Not quite so apparent, but perhaps 

 of even more importance to the layman, is this: Although he would 

 concede that, in many instances, the government of the state or city 

 has had to restrict the number of persons in various business en- 

 deavors, he would like to be shown why, in the case of the fishing 

 industry, it was thought necessary to do so. In other words, he would 

 want to make sure there were reasons for the legislative action. By 

 "reasons" here he means "legitimate reasons," for he would say 

 immediately that, if this were only a scheme to furnish higher profits 

 for a certain small group, {e.g., the present purse seiners), particu- 

 larly if there were no provision for new entrants into the field, or if 

 the admission of new entrants was left to the unlimited discretion 

 of those now admitted, he would quite rightfully be most critical 

 of the scheme. 



Both the Washington State constitution and the United States 

 constitution contain clauses which could be used as a basis for such 

 an attack upon the licensing scheme. Since a clear understanding 

 of these provisions is necessary in order to see how the legislature 

 might constitutionally attempt to solve the problems of the salmon 

 fishery, there is set forth first a basic analysis of the pertinent pro- 

 visions. This analysis deals first with the development in the decisions 

 of the United States Supreme Court and then with the similar devel- 

 opment in the decisions of the Washington court. 



