TORAO TAKAHASHI, Respondent, v. FISH AND GAME COMMISSION et al., Appellants, 30 Cal. 2d 719

EDMONDS, J. The superior court granted a peremptory writ of mandate directing the Fish and Game Commission to issue to the petitioner, Torao Takahashi, an alien ineligible to citizenship of the United States, a commercial fishing license. Upon its appeal from the judgment, the commission asserts that

section 990 of the Fish and Game Code, which declares that a license shall not be granted to such an alien, is controlling. The constitutionality of that statute is the only question for decision. In his amended petition, Takahashi alleges that since 1915, and until 1941, he was a duly licensed commercial fisherman, engaging in that occupation on the high seas. He was evacuated from California by military order in 1942.

Upon his return to California in 1945, petitioner asserts, he qualified to obtain a fishing license within all of the requirements of the California Fish and Game Code “except only that he is a person of Japanese descent.” The commission then refused to issue a license to him “solely because of his Japanese ancestry,” and “solely because of the provisions of

Section 990 of the Fish and Game Code. ’ ’ This provision is unconstitutional on its face, and as applied to him, says Takahashi, because it was enacted for the purpose of discriminating against persons solely because of race, and is being administered in furtherance of that purpose. The bar of the statute, therefore, denies him due process of law as guaranteed by the state and federal Constitutions and the equal protection of the laws as guaranteed by the federal Constitution. The remedy of mandamus is invoked, the petition concludes, because he has no adequate or any remedy at law or in any other proceeding.

The relief sought is a peremptory writ requiring the commission to issue to him a commercial fishing license “to engage in commercial fishing on the high seas.” By its answer, the Fish and Game Commission denies that it refused Takahashi a license because of his Japanese ancestry. Upon information and belief, it asserts that he is ineligible to citizenship of the United States and, for that reason, it is not authorized or empowered under the applicable statute to issue a license to him. The remaining allegations of the petition are denied generally, specifically, or upon information and belief.

As separate defenses, the commission alleges that the petition does not state facts sufficient to constitute a cause of action; that Takahashi is not qualified to receive or to have issued to him a commercial fishing license under the provisions of

section 990 of the Fish and Game Code; and that he has no legal capacity to sue. A demurrer to the petition was overruled. Petitioner then moved for a peremptory writ, the matter came on for hearing upon the pleadings, and judgment was rendered in his favor. By this judgment, the court found that Takahashi, although “a person ineligible to citizenship in the United States, . . . is qualified to have issued to him a commercial fishing license, under the provisions of

section 990 . . . authorizing him to bring ashore in California, for the purpose of selling the same in a fresh state, his catches of fish from the waters of the high seas beyond the State’s territorial jurisdiction.” The commission perfected its appeal from this judgment and the transcript was filed within rule time. A few days later, the superior court, on application of Takahashi, entered an amended judgment directing that, by a peremptory writ of mandate, the commission be ordered to issue to him a commercial fishing license.

Under the terms of the amended judgment and the amended peremptory writ of mandate, the commission is required to issue a license to Takahashi permitting him to fish commercially in territorial waters of the state as well as on the high seas. In aid of appellate jurisdiction, the commission filed a notice of appeal from the amended judgment. By stipulation, the record on appeal was augmented to include the notice of appeal from the amended judgment, the affidavit of Takahashi and the original and amended order made under

section 1110(

b) of the Code of Civil Procedure, the amended judgment granting the peremptory writ of mandate, and the amended peremptory writ of mandate. The amended order made under

section 1110(

b) provides that the appeal taken from the judgment of the superior court granting the writ of mandate “shall not operate as a stay of execution of said judgment.” Upon application of the commission, this court granted a writ of supersedeas staying proceedings upon both judgments until the determination of the appeal. The commission, represented by the attorney general, does not question the validity of the amended judgment upon the ground that it was rendered after the appeal was perfected because the parties desire to have a decision upon the basis of its provisions.

Also, the appellant does not now rely upon its separate defense that Takahashi has no legal capacity to sue. Turning to the merits of the controversy, the commission contends that fish, like game, is the property of the state and held by it in its sovereign capacity as a trustee for all of its people; therefore, an individual cannot obtain an absolute property right in fish or game except upon such conditions, restrictions and limitations as the state may impose.

It is well established, the argument continues, that the state, in the interest of conservation, may confer exclusive rights of fishing and hunting on its own citizens and, without violating constitutional inhibitions, expressly exclude aliens and nonresident citizens. The state may further classify aliens into two groups, those who are and those who are not eligible for citizenship, and such legislation is presumed to be constitutional.

The reduction of the number of persons eligible to fish bears a reasonable relation to the object of conservation of fish and is within the purview of the state’s police power; therefore, the classification is a reasonable one. And the inherent power of the state to regulate fish and game applies to fish brought into the state from the high seas by an ineligible alien. Concerning the question as to whether the statute is being administered so as to discriminate against the Japanese, the commission relies upon the fact that no proof was offered by Takahashi in support of his allegation in that regard.

For that reason, says the appellant, the allegations of the answer must be taken as true. The court may not take judicial notice that Japanese are the only ineligible aliens who engage in commercial fishing in ocean waters bordering California, and there is no basis for a conclusion that there was unconstitutional discrimination against Japanese aliens by description rather than name in the 1945 amendment to

section 990. Nor may the court take judicial notice of alleged discrimination, as found in certain reports made by a committee of the California Senate and other articles. In conclusion, the commission argues that

section 990 of the Fish and Game Code does not divest Takahashi of rights under the treaty with Japan, because that treaty was abrogated in 1940. Takahashi claims that

section 990 of the Fish and Game Code is unconstitutional. Because it constitutes discriminatory race legislation, he argues, it violates due process as guaranteed by the California and United States Constitutions, and denies equal protection of the laws in violation of the federal Constitution. More specifically, he contends that the legislative history of

section 990 discloses that this legislation was and is aimed exclusively at persons of the Japanese race. And even if fishing in territorial waters is a privilege granted by the state, rather than a right, the state may not unconstitutionally discriminate because of race, in the grant of that privilege.

In support of this claim Takahashi contends that the court should take judicial notice of certain facts; namely, that it was known to the Legislature in 1945 that Japanese were the only aliens ineligible to citizenship who engaged in commercial fishing in California waters and that certain articles and Senate reports show discrimination against this race.

The alien also argues that the decisions construing the alien land law are not controlling in the present controversy because they do not concern the right to follow an occupation, and the statute concerning real estate has not been challenged as one aimed exclusively against any particular race; An. appeal removes from the jurisdiction of the trial court the subject matter of the judgment or order appealed from, including all issues going to the validity or correctness of such judgment or order. The trial court has no power thereafter to amend or correct its judgment or order, or to vacate or to set it aside.

Such power cannot be reinvested in the trial court even by the consent of the parties. (Linstead v. Superior Court, 17 Cal.App.2d 9 [61 P.2d 355] ; Kinard v. Jordan, 175 Cal. 13 [164 P. 894] ; Parkside Realty Co. v. MacDonald, 167 Cal. 342 [139 P. 805].) The amended judgment is, therefore, void, but an appeal may be prosecuted from it as a “special order made after final judgment,” for the purpose of having the determination reviewed and reversed. (Code Civ. Proc., § 963, subd. 2; Ivory v. Superior Court, 12 Cal.2d 455, 460 [85 P.2d 894] ; Luckenbach v.

Krempel, 188 Cal. 175, 177 [204 P. 591]; see 2 Cal.Jur., Appeal and Error, § 40.)

Section 990 of the Fish and Game Code requires “every person who uses or operates or assists in using or operating any boat ... to take fish . . . for profit,” or who brings fish ashore “at any point in the State for the purpose of selling the same in a fresh state,” to procure a commercial fishing license. Such a license “may be issued to any person other- than a person ineligible to citizenship.” This

section was first codified in 1933 (Stats. 1933, ch. 73; based on Stats. 1909, ch. 197, as amended). At the same session of the Legislature, the

section was amended (Stats. 1933, ch. 696), and contained a restriction against persons who had not lived in the United States for one year. This restriction was held unconstitutional in Abe v. Fish & Game Commission, 9 Cal. App.2d 300 [49 P.2d 608]. The hunting license section (427) of the Fish and Game Code, prior to 1945 and at the present time, classifies persons, for the purpose of imposing fees, as those under and over the age of 18 years, citizen residents of this state, nonresident citizens, resident declarant aliens, and those who have not declared their intention of becoming citizens.

Section 428 of the same code, relating to sport fishing licenses, also classifies persons into groups of those over and under 18 years, residents and nonresident citizens of the United States, and aliens. In 1943 (Stats. 1943, ch. 1100), these sections were, amended and “alien Japanese” were singled out by name as the only persons not qualified for a license to hunt, or fish for pleasure or profit.

However, in 1945 (Stats. 1945, ch. 181), each of these sections was amended so as to deny an alien “ineligible to [United States] citizenship” the privilege of obtaining either a hunting, sport fishing or a commercial fishing license. The Fourteenth Amendment to the federal Constitution is not confined to the protection of citizens. It applies to all persons within the territorial jurisdiction,, without regard to differences of race, creed, color or nationality. (In re Kotta, 187 Cal. 27 [200 P. 957]; Truax v. Raich, 239 U.S. 33 [36 S.Ct. 7, 60 L.Ed. 131, Ann.Cas. 1917B 283, L.R.A. 1916D 545] ; Yick Wo v.

Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220]; Wormsen v. Moss, 177 Misc. 19 [29 N.Y.S.2d 798].) The equality guaranteed is equality under the same conditions, and among persons similarly situated. However, the Legislature may make a reasonable classification of persons and businesses and pass special legislation applying to certain classes. The rule is that the classification shall not be arbitrary, but must be based upon some difference in the classes having a substantial relation to a legitimate object to be accomplished. (Watson v.

Division of Motor Vehicles, 212 Cal. 279 [298 P. 481]; Pacific Indemnity Co. v. Myers, 211 Cal. 635 [296 P. 1084] ; Superior etc. Corp. v. Superior Court, 203 Cal. 384 [264 P. 488]; In re Kotta, supra, Gulf etc. Co. v. Ellis, 165 U.S. 150 [17 S.Ct. 255, 41 L.Ed. 666].) As stated in Wormsen v. Moss, supra, “. . . the free right to labor is subject to the qualification that the right may be interfered with by the State, in the exercise of its general police power, in the interests of the health, morals, safety or welfare of the community.

Such action of the State must, however, be reasonable, bear a just and reasonable relation to the promotion of the general welfare, and avoid arbitrary discrimination between persons. A statute enacted in the exercise of the police power must have been passed to prevent some manifest evil or to preserve public health, morals, safety or welfare. ... If the calling is one that the State, in the exercise of its police power, may prohibit either absolutely or conditionally, by the exaction of a license, the fact of alienage may justify a denial of the privilege.

But even then, there must be some relation between the exclusion of the alien and the protection of the public welfare.” (29 N.Y.S.2d 801, 803.) Stated another way, the test of the constitutionality of legislation denying aliens the right to obtain a license to pursue a business is whether the classification has some reasonable basis in the welfare of the community. (Miller v.

City of Niagara Falls, 207 App.Div. 798 [202 N.Y.S. 549].) When a legislative enactment is attacked upon the ground of discrimination, all presumptions and intendments are in favor of the reasonableness and fairness of the legislative action. The existence of facts supporting the legislative judgment is to be presumed and the burden of overcoming the presumption of constitutionality is cast upon the assailant. The decision of the Legislature as to what is a sufficient distinction to warrant the classification will not be overthrown by the courts unless it is palpably arbitrary. (People v.

Globe Grain & Mill Co., 211 Cal. 121, 127 [294 P. 3] ; People v. Monterey Fish Products Co., 195 Cal. 548, 556 [234 P. 398, 38 A.L.R. 1186] ; Alabama State Federation v. McAdory, 325 U.S. 450, 465 [65 S.Ct. 1384, 89 L.Ed. 1725]; United States v. Carolene Products Co., 304 U.S. 144, 152 [58 S.Ct. 778, 82 L.Ed 1234].) The only possible limitation upon this rule is where the legislation attempts to restrict fundamental liberties. (See United States v. Carolene Products Co., supra, p. 152; Thornhill v.

Alabama, 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093].) The statute now challenged regulates the bringing ashore in California of fish caught in territorial waters and on the high seas, and prohibits the issuance of commercial fishing licenses for either of these purposes to aliens ineligible to United States citizenship. It has long been held that the state is the owner of the fish in coastal waters and may regulate the taking of them for private use. “The legislature may dispose thereof as to it may seem best, only subject to constitutional limitations against discrimination.

Within those limitations the legislature, for the purpose of conserving and protecting fish, may pass such laws as to it seem wise, and the question what measures are best adapted to that end are for its determination . . . [citations]. . . . Such fish can become the subject of private ownership only in such qualified way, to such limited extent, and subject to such conditions and limitations as the state through its legislature may see fit to provide and impose.” (People v. Monterey Fish Products Co., supra, p. 563; see In re Makings, 200 Cal. 474, 481 [253 P. 918] ; People v. Glenn-Colusa Irr.

Dist., 127 Cal.App. 30, 36 [15 P.2d 549]; Bayside Fish Flour Co. v.

Zellerbach, 124 Cal.App. 564, 566 [12 P.2d 961].) It is well established that the Legislature has the most extensive powers over the fish and game within its jurisdiction. (In re Makings, supra, p. 481.) The broad powers of the state in this regard were early established in Ex parte Maier, 103 Cal. 476 [37 P. 402, 42 Am.St.Rep. 129], where the court said, “The wild game within a state belongs to the people in their collective, sovereign capacity; it is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or any traffic or commerce in' it, if deemed necessary for its protection or preservation, or the public good.” (See Lubetich v.

Pollock, 6 F.2d 237 and cases cited therein.) The right of the state to confer exclusive rights of hunting and fishing within its borders upon its own citizens is, therefore, beyond question. Also, citizens of other states, aliens, and alien residents may be constitutionally denied the privilege. (Lacoste v. Dept. of Conservation, 263 U.S. 545 [44 S.Ct. 186, 68 L.Ed. 437] ; Patsone v. Pennsylvania, 232 U.S. 138 [34 S.Ct. 281, 58 L.Ed. 539] ; Geer v. Connecticut, 161 U.S. 519 [16 S.Ct. 600, 40 L.Ed. 793] ; McCready v. Virginia, 94 U.S. 391 [24 L.Ed. 248]; Lubetich v.

Pollock, supra; In re Eberle, 98 F. 295; Cummings v. People, 211 Ill. 392 [71 N.E. 1031] ; Commonwealth v. Hilton, 174 Mass. 29 [54 N.E. 362, 45 L.R.A. 475] ; State v. Kofines, 33 R.I. 211 [80 A. 432, Ann.Cas. 1913C 1120]; People v. Setunsky, 161 Mich. 624 [126 N.W. 844]; State v. Leavitt, 105 Me. 76 [72 A. 875, 26 L.R.A. N.S. 799] ; People v. Brennan, [142 Misc. 225 [255 N.Y.S. 331] ; State v. Niles, 78 Vt. 266 [62 A. 795, 112 Am.St.Rep. 917] ; Alsos v. Kendall, 111 Ore. 359 [227 P. 286]; State v. Maybury, 136 Wash. 210 [239 P. 552].) The broad powers of the state in this regard are set forth in Lubetich v.

Pollock, supra, where the court stated; “In the light of the foregoing authorities it seems unescapable that the state owns the food fish in the waters over which it has jurisdiction, the same as any other proprietor owns property, and that aliens and nonresidents of the state may be constitutionally denied the right to take fish within its borders.

The power to make such disposition of the fish arises out of and is incidental to the ownership of the property.” (6 F.2d 240.) Answering the contention that the Washington statute denied an alien the right to engage in a lawful occupation, the district court adopted with approval the following declaration by the Supreme Court of Oregon: “The rights of the state in the fish and in the waters from which the fish are to be taken are superior to plaintiff’s right to choose fishing for salmon in those waters for an occupation.

Such an occupation is not open to an alien against the legislative will of the state, since it involves the appropriation of property belonging to the state in its sovereign capacity.

The state, in prohibiting aliens from engaging in the taking of salmon fish, is dealing with the common property of the people of the state; in prohibiting citizens of other states and unnaturalized foreign-born residents from fishing in the public waters of the state the state is, in fact, dealing with a property right of the state, and not with a mere privilege or immunity of a citizen of another state, nor does it amount to a denial to an alien within the state of the equal protection of its laws.

Under the police power of the state the Legislature may prescribe any terms or conditions reasonably necessary for the preservation of the fish, but in the enactment of this law the Legislature was not legislating under its police powers, but under its reserved powers as the owner of the property which was the subject of the legislation, and which was to be affected thereby. As such owner it was authorized to prescribe any terms or conditions upon which the property of the state might be converted into private ownership.

In legislating to that end it was dealing with its own property, and it had all of the rights and powers of an individual owner subject only to the duties which it owed to its own citizens.” Under the broad powers resting in the state in regard to the regulation of its fish and game as established by these authorities, it is clear that a state may withhold the privilege of hunting and fishing from aliens ineligible to United States citizenship. This court recently held in People v.

Oyama, 29 Cal.2d 164 [173 P.2d 794], that the Alien Land Law (Alien Property Initiative Act of 1920, Stats. 1921, p. lxxxiii, as amended; 1 Deering’s Gen. Laws, Act 261) is constitutional. The broad powers of the state to regulate the ownership of real property within its boundaries were restated, and it was held that a state may prohibit, subject to a treaty to the contrary, the ownership of its lands by aliens ineligible to United States citizenship. The opinion points out that “Upon the subject of equal protection,” the United States Supreme Court in Terrace v.

Thompson, 263 U.S. 197 [44 S.Ct. 15, 68 L.Ed. 255], “held that the classification was reasonable, saying that the rule established by Congress on the subject of naturalization ‘in and of itself, furnishes a reasonable basis for classification in a state law withholding from aliens the privilege of land ownership as defined in the act.’ ” The basis of the classification regarding real estate is the same as the one upon which the statute here in controversy rests. By one statute, the state prohibits the ownership of land by ineligible aliens.

In the other enactment the Legislature has declared that such persons shall not take fish from its waters. In many decisions the courts have upheld a classification of persons by which nonresidents and aliens were denied hunting and fishing privileges. Insofar as conservation is concerned, it is just as reasonable to classify aliens upon the basis of eligibility to citizenship.

Obviously, if the Legislature determines that some reduction in the number of persons eligible to hunt and fish is desirable, it is logical and fair that aliens ineligible to citizenship shall be the first group to be denied the privilege of doing so. This is a logical, established, and reasonable method of classifying for conservation purposes, and the existence of facts supporting the legislative judgment is presumed.

In view of the application of the presumption of constitutionality to legislation of this kind, and because of the broad powers of the Legislature in regard to the ownership, regulation and protection of wildlife, it may not be said that the refusal of the state to allow aliens ineligible to citizenship in the United States to take, or assist in the taking of, fish for private use is so palpably arbitrary as to deny such aliens constitutional guarantees. The broad ground of attack that

section 990 violates Takahashi’s rights under the treaty between the United States and Japan is entirely without merit, for that treaty was abrogated on January 26, 1940. (See People v. Oyama, supra, p. 174.) Takahashi contends, however, that

section 990 is unconstitutional because it was enacted for the purpose and administered in a manner to discriminate against persons, including petitioner, solely because of his race. He points to the statute as it stood before the 1945 amendment and claims that the same group was singled out in different terms. Certain legislative reports and articles are referred to. But Takahashi has not established with any certainty that the Legislature intended to discriminate against the Japanese by enacting the 1945 amendment to

section 990. Certainly such discrimination does not appear upon the face of the amendment. All of the races ineligible to citizenship are included, and no one group in particular is singled out. Prior to the 1945 amendment,

section 990 expressly excluded alien Japanese, but this

section was changed to exclude persons ineligible to citizenship. However, this does not conclusively show that the 1945 amendment was intended to be a continuance of the exclusive ban on alien Japanese by description rather than by name. Just as reasonably it may be said that the history of the 1943 and 1945 legislation shows a legislative desire to avoid the possibility of Japanese racial discrimination by extending the prohibition to all persons within a given class.

And the fact that the Legislature applied the phrase “ineligible to citizenship” to other subjects covered in the same chapter, including sport fishing and hunting, indicates that there was no intention to discriminate against alien Japanese commercial fishermen. Nor do the reports referred to in Takahashi’s briefs point unerringly to unwarranted discrimination. The Senate fact-finding committee reported merely that because the statute, as it read in 1943, might be declared unconstitutional, a change to the present form was desirable.

By the amendment, it may be inferred, the Legislature desired to extend conservation measures and did not rewrite the statute for the purpose of discriminating against alien Japanese. Furthermore, such reports on their face represent the opinion of only a few of the legislative body and cannot, with any certainty, be said to express the intention of the Legislature as a whole. For much stronger reasons, articles in newspapers or other unofficial publications cannot be considered as statements of legislative intent.

Takahashi contends, as justifying judicial notice, that “it was commonly known to the legislators of 1945 that Japanese were the only aliens ineligible to citizenship who engaged in commercial fishing in ocean waters bordering on California.” Although the scope of judicial knowledge has been amplified by the courts in recent years, certain limitations remain. Courts may take judicial notice of facts that are regarded as forming a part of the common knowledge of every person of ordinary understanding and intelligence.

However, such common knowledge must be certain and indisputable, and the matter should be within the court’s jurisdiction. (Varcoe v. Lee, 180 Cal. 338, 346 [181 P. 223]; see Code Civ. Proc., § 1875; People v. Sanchez, 21 Cal.2d 466 [132 P.2d 810] ; Livermore v. Beal, 18 Cal.App.2d 535 [64 P.2d '987]; 31 C.J.S., Evidence, §§ 6 et seq.; 10 Cal.Jur. 693.) Can it be said with certainty that Japanese were the only aliens ineligible to citizenship who engaged in commercial fishing in ocean waters bordering on California f And is the answer to this question a matter of common knowledge ?

The “Fish Bulletins,’' compiled by the Bureau of Marine Fisheries, Division of Fish and Game, Department of Natural Resources, do not include such information. And it was stipulated that the Statistician of the Bureau of Marine Fisheries does not know how many aliens ineligible to United States citizenship applied for commercial fishing licenses during the past 15 years. At the time the 1945 amendment to

section 990 was passed, the naturalization laws of the federal government prohibited Japanese, Hindus and Malayans from becoming citizens of the United States. The 16th census of the United States, taken in 1940, shows that California was populated by aliens other than Japanese who were also ineligible to citizenship, and it is reasonable to assume that some of those persons were, or might desire to be, engaged in fishing as an occupation. When the Legislature acted in 1945, it did not change only the requirements in regard to commercial fishing.

Sections 427 and 428, relating to hunting and sport fishing licenses, also were amended to prohibit the issuance of such licenses to ineligible aliens. If judicial knowledge is to be invoked, the intent of the Legislature of 1945 in enacting the changes in

chapter 181 should be gathered from the whole

chapter and not alone from the

section relating to commercial fishing. To follow logically the contention of Takahashi would require the further assumption of judicial knowledge that Japanese are the only ineligible aliens who hunt or fish for pleasure in California. This, conclusion is again open to the objection of gross uncertainty. Under these circumstances, Takahashi has not sustained the burden of showing that the challenged statute is either unconstitutional on its face, or that it has been unconstitutionally applied to him. This conclusion is not at variance with Macallen Co. v.

Massachusetts, 279 U.S. 620 [49 S.Ct. 432, 73 L.Ed. 874], which held that a statute imposing a tax on federal securities was void notwithstanding the designation given to the legislation. Counsel for Takahashi use the Macallen case as authority for their position that if the 1943 amendment to

section 990 barring alien Japanese by name from fishing and hunting was unconstitutional, so is the present statute, because, since 1945, the same group is now singled out by a more general designation. But it is established by both federal and state authorities that the state may properly deny the privilege of hunting and fishing to all except its own citizens, and the record does not show that Japanese are the only ineligible aliens in this state who have hunted and fished. Nor is In re Ah Chong, 2 F. 733, relied upon by Takahashi, controlling.

In that case the court held unconstitutional an early California statute which prohibited aliens incapable of becoming electors of the state from fishing in inland state waters. This conclusion was placed upon the ground that the legislation was aimed solely at the Chinese. The statute was one of a series of constitutional provisions and legislative enactments, some of which singled out the Chinese by name, directed against a particular racial group. In those early days it was commonly known that the Chinese were the only aliens in California who could not become electors.

It was thus evident from the extensive legislation and declared policy of the state, as embodied in its Constitution, that Chinese were being singled out not only by name but by description. The Ah Chong case, therefore, is clearly distinguishable on its facts from the issues now before the court. Also, in striking down the statute, the court did not consider the important rules in regard to the presumption of constitutionality; nor, apparently, did the state strenuously urge, as here, that the statute was enacted for conservation purposes.

Other cases cited by Takahashi do not compel a determination in his favor. In Abe v. Fish & Game Commission, supra, the court considered only the constitutionality of

section 990 insofar as it prohibited nonresidents from bringing ashore in California fish caught on the high seas. The decision does not construe the statute insofar as it prohibits the issuance of territorial commercial fishing licenses to ineligible aliens. Danskin v. San Diego Unified School District, 28 Cal.2d 536 [171 P.2d 885], concerned the constitutionality of

section 19432 of the Civic Center Act, which allows the governing boards of school districts to refuse the use of school buildings to “subversive elements.” A majority of the court held the measure unconstitutional as an interference with freedom of speech and assembly upon the ground that, although a state may withhold the “use of school property, it may not impose an arbitrary and unconstitutional requirement as a condition for granting the privilege. The statute now under attack imposes no unconstitutional requirement as a condition for a privilege. Considering the provisions of

section 990 in regard to the bringing ashore of fish caught beyond coastal waters, it is well established that the state, in the exercise of its police power, may regulate and control the taking, possession and sale, or transportation of fish and game. This principle is applicable to sea products caught upon the high seas beyond the three-mile limit of state jurisdiction and sought to be brought into or transported over portions of the state which have been subjected to statutory regulations affecting the taking, possession, and sale of fish and other marine products. (Johnson v.

Gentry, 220 Cal. 231 [30 P.2d 400]; Svenson v. Engelke, 211 Cal. 500 [296 P. 281] ; Ex parte Maier, supra; Silz v. Hesterberg, 211 U.S. 31, 40 [29 S.Ct. 10, 53 L.Ed. 75] ; Geer v. Connecticut, supra; Van Camp Sea Food Co. v. Department of Natural Resources, 30 F.2d 111; In re Deininger, 108 F. 623.) This rule is not violative of the federal government’s interstate commerce power. (Ex parte Maier, supra, p. 484; Geer v. Connecticut, supra, p. 534; Silz v. Hesterberg, supra, p. 43; Van Camp Sea Food Co. v.

Department of Natural Resources, supra, p. 113.) The reason for upholding such a regulation or prohibition was stated in Van Camp Sea Food Co. v.

Department of Natural Resources, supra, where the court said: “We entertain no doubt as to the validity of such restriction on or qualification of the use to be made of the fish, because it tends to their protection and conservation as much as does a limitation on the right to sell game or ship it to points without the state . . . the state has the right to limit or qualify the use that may be made of fish of the same species brought into the state from the high seas, in order to make effective the restriction on the use of fish taken from its own waters.”

Section 1110 of the Fish and Game Code was considered in Santa Cruz Oil Corp. v. Milnor, 55 Cal.App.2d 56 [130 P.2d 256], and, in sustaining its requirements, the court adopted the following pertinent language from Mirkovich v. Milnor, 34 F.Supp. 409: “ ‘That a state has the power to enact legislation for the conservation of its fisheries is, of course, not open to question.

Any law having a reasonable relation to such object and its accomplishment, and which is not unduly oppressive upon individuals must be upheld as a legitimate exercise of the state’s police power without inquiry into the possible soundness of legislative judgment in the premises and without consideration for possible individual hardships. “ ‘The insurmountable difficulties attendant upon policing the waters of the state from the coast to the imaginary three mile limit, wherever fishing operations occur; the impossibility of distinguishing fish taken in state waters from those taken from without, or between vessels fishing within from those fishing beyond the state’s limits; the consequent ease with which fraud and deceit might be practiced by vessels delivering fish taken from the fisheries of the state to points outside the state on the pretext of operating solely beyond the three mile limit—these considerations alone justify the provisions of

section 1110 of the Fish and Game Code as a proper exercise of the police power of the State of California, having reasonable relation to the object of their enactment, and reasonably calculated to render effective the state’s power of control over the fish supply within its territorial waters. “ ‘In Bayside Fish Flour Co. v.

Gentry, supra [297 U.S. 422 (56 S.Ct. 513, 80 L.Ed. 772)], the United States Supreme Court upheld the constitutionality of certain portions of the California Fish and Game Code regulating the processing within the state, for interstate commerce, of sardines taken either from the waters of the state or from beyond the state’s territorial boundaries.

State legislation prohibiting the possession of wild game out of season within its borders was held a valid exercise by the state of its police power for the protection of the state’s own game supply, in its application to game imported from without the state. . . . “ ‘We have referred to but a few of the decisions upholding the constitutionality of state legislation calculated to effectuate the exercise by the state of its police power for the general welfare of its inhabitants.

In each instance, the legislation was adjudged valid by application of the principle which governs the instant case; namely, that the state’s power of control over its fish and wild game includes the right to adopt any measure, not unduly oppressive to private individuals, reasonably necessary to render that control effective.’ ” Applying the rule of these cases to Takahashi’s situation, as the state may prohibit the transportation of salmon caught on the high seas through certain districts during a closed season (Johnson v.

Gentry, supra); prohibit possession of game during a closed season even if brought from without the state (Silz v. Hesterberg, supra); prohibit the sale of trout within the state although it was lawfully caught in another state and brought into this state for the purpose of sale (In re Deininger, supra); or regulate the output of a plant processing fish caught on the high seas (Van Gamp Sea Food Co. v.

Department of Natural Resources, supra), in furtherance of its declared public policy to prohibit ineligible aliens from taking its animals ferae naturae, the state also may refuse to issue a commercial fishing license to aliens ineligible to United States citizenship so as to permit them to bring ashore sea products at any point in the state for the purpose of selling the same in a fresh state.

Section 990 of the Fish and Game Code as it stood at the time of the decision of Abe v. Fish & Game Commission, supra, required a license of every person who assisted in the bringing of fish caught on the high seas into this state, for the purpose of selling the same in a fresh condition, and limited the issuance of such license to persons who had continuously resided in the United States for a period of one year. The statute in that form rested upon no reasonable basis for the prohibition.

The present provision prohibits the bringing of fish ashore in California in the furtherance of an established and legitimate policy in regard to the distribution and conservation of the common property of the state. The original and amended judgments are, and each of them is, reversed with directions to enter judgment for the commission and its members. Shenk, J., Schauer, J., and Spence, J., concurred.