LEGAL ANALYSIS 109 



ing have not dealt directly with regulations of the fishing occupation. 

 The importance of them to the restrictive licensing scheme under 

 consideration in this project is this: The foregoing analysis should 

 demonstrate that it is not a sufficient objection to the scheme to 

 label the occupation of fishing as a "right" and therefore immune 

 from regulation. On the other hand, it is equally obvious that the 

 occupation cannot be labeled a "privilege" and therefore susceptible 

 to regulation without limit. Even liquor dispensers have some rights 

 associated with their activities; and, on the other hand, all manner 

 of occupations are subject to myriads of regulation. The list is 

 almost limitless; one need only inspect the ordinances of Seattle, for 

 example, to see that some sixty occupations are licensed and that the 

 list includes many time-honored occupations, many which could 

 be called both "harmless" and "perfectly lawful." They would include 

 such persons as locksmiths, junk dealers, massage parlor operators, 

 and plumbers, to say nothing of fumigators, hotel runners and punch- 

 board operators. 



What must therefore be done is that which has been done in the 

 earlier part of this report: Use the tests which have been developed 

 for the application of the constitutional clauses. By their use the 

 validity of the restrictive scheme should be apparent. 



3. "Property" in the Fish 



The third concept which has been used in deciding the constitu- 

 tionality of regulations of economic activity is one directly concerned 

 in fisheries regulation. This is the proposition that the state owns 

 the fish as a sort of trustee for the benefit of all the people of the 

 state. Here, again, as with the right-privilege concept, the proposition 

 may lead to diflficulty if taken too literally, for it certainly proves 

 too much. 



Certainly, if the state were the owner in the usual sense, many 

 ridiculous results would flow: Just for example, a person taking the 

 fish without permission would commit larceny; yet the state does not 

 prosecute for larceny under these circumstances, for not only would 

 no court permit conviction under those circumstances, there is also 

 the appropriate sanction within the fishing laws themselves to apply 

 to the person who violates the restrictions. Also, as any student of 

 the law would be the first to point out, the state's control over the 

 fish is not of the sort which is characteristic of ownership in the 

 ordinary sense. Yet it took Mr. Justice Holmes to point this out in 

 a very famous case in which Missouri argued that its property right 



