LEGAL ANALYSIS 111 



In still another case where a state asserted that its strong right 

 of control over the fish gave it power to enact regulations which 

 discriminated unfairly against nonresidents, the United States Supreme 

 Court pointed out that "[t]he whole ownership theory, in fact, is 

 now generally regarded as but a fiction expressive in legal shorthand 

 of the importance to its people that a state have power to preserve 

 and regulate the exploitation of an important resource."^ ^^ This 

 statement is Mr. Chief Justice Vinson's, appearing in Toomer v. 

 Witsell,'^'' decided in 1948. 



Yet, the Washington legislature and court both have insisted 

 upon talking in terms of ownership. If by this term is meant the 

 shorthand fiction to which the Chief Justice referred in Toomer v. 

 Witsell no one could quarrel with that usage. The Washington court 

 has not always confined its usage in that manner. An example may 

 be seen in the 1925 case of McMillan v. Sims,^^^ where a State 

 Fisheries Board order, made pursuant to statute, forbade the further 

 use of traps in Skagit Bay. The court upheld the order as against 

 a claim of violation of due process and equal protection concepts. 

 Although the result could have been reached by orthodox use of 

 these concepts, the court relied almost entirely on the implications 

 of full ownership in the state: After stating an entirely valid con- 

 stitutional law basis for the order and the lack of judicial concern 

 with the wisdom of the order, the court continued: 



". . . we hold that no judicial question is presented by the allegations 

 of the complaint which seeks [sic] to draw in question the wisdom, reason- 

 ableness, or even the capricious exercise of this power of establishing this 

 preserve. The state does not have to base its action in the premises upon 

 any reason or consideration with which the courts have any concern, no 

 more than does any owner of property with reference to his lawful disposi- 

 tion of his property. "1^^ 



The Washington court has, however, made one concession to 

 the realities of constitutional law, for it has acknowledged that even 

 the state ownership must be in conformance with the equal protection 

 clause of the state constitution. A clear holding to the effect is seen 

 in State ex rel. Campbell v. Case,^^^ a 1935 decision upholding 



159. Toomer v. Witsell, 334 U. S. 385, 402 (1948), 



160. 334U. S. 385 (1948). 



161. 132 Wash. 265,231 Pac. 943 (1925). 



162. Id. at 272; 23 1 Pac. at 945. 



163. 182Wash. 334, 47 P. 2d24 (1935). 



