112 SALMON GEAR LIMITATION 



Initiative No. 77 as it applied to a pound-net fisherman. The court 

 said: 



"But while the state owns the fish in its waters in its proprietary right, 

 it holds title as trustee for all the people and for the common good and 

 regulations made for the use of this common property must bear equally 

 on all persons similarly situated. "^^"^ 



The purpose in treating the ownership concept in this report is 

 to warn against undue reliance upon it to sustain legislation. Its 

 vice, like that of labeling some economic activity a "privilege," is 

 that if valid in its literal sense it proves too much. Rather, it should 

 be used if at all merely to point out the very high degree of concern 

 which the state justifiably feels as to the salmon resources and the 

 importance to the state that these be utilized to produce the highest 

 public good. Should the legislature decide that both the over-all 

 economy of the state and a continued source of supply of the fish 

 will better be accomplished by a restrictive licensing scheme, there 

 seems no doubt that as here used, the property concept will serve 

 its best function in emphasizing that such action by the legislature 

 will be within the bounds of constitutionality. 



F. Certain Cases Distinguished 



South Carolina, Maryland, Alaska, and Texas have all furnished 

 cases involving the validity of restrictions upon the numbers of 

 fishermen, but in each case the legislation was either in its express 

 terms or in its apparent purpose largely for the benefit of residents 

 to the exclusion of nonresidents. Such local favoritism is headed for 

 sure trouble: Under the 1948 decision of the United States Supreme 

 Court in Toomer v. Witsell,^^^ the Court invalidated a highly dis- 

 proportionate tax laid by South Carolina on nonresident fishermen 

 operating in the offshore shrimp-fishing areas. The constitutional 

 basis is Article IV of the federal constitution, which requires that 

 each state treat out-of-state visitors the same as it does its own citi- 

 zens. ^^^ The only concession which the United States Supreme Court 

 has made in this requirement is to allow states to apply to nonresidents 

 only such higher taxes or more stringent regulations as are made 

 necessary to the enforcement of otherwise valid laws because of the 



164. Id. at 339; 47 P. 2d at 26. 



165. 334 U.S. 385 (1948), discussed .s:///>ra, nn. 155 and 159-160. 



166. United States Constitution, Article IV, §2: 'The citizens of each state shall be 

 entitled to all privileges and immunities of citizens in the several states." 



