Johnson v. Gentry

THE COURT.

Plaintiffs bring this action on behalf of Eureka Fishermen’s Union, an unincorporated association of commercial fishermen comprising about 150 members, against respondents as members and deputies of the California Fish and Game Commission, to restrain them from enforcing the provisions of Penal Code section 634, as amended in 1931. The lower court gave judgment for defendant.

The facts are not in dispute. The controlling provision of the statute in question reads: “No salmon from the high seas, Oregon, or any other fish and game district may be

brought

through fish and game districts six, seven, eight and nine between the sixteenth day of September and the

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thirtieth day of April of the year following, both dates inclusive.” (Pen. Code, sec. 634, subd. 6.) This provision sets up, during the closed season for salmon fishing within this state, a barrier to the transportation of salmon caught outside the jurisdiction of the state. The districts mentioned therein comprise the three mile marginal belt of ocean waters from Oregon to the Sonoma County line, and the waters of Humboldt Bay. In those districts, the law prohibits the taking of fish during the closed season. The statute under consideration provides also that salmon caught outside the three mile limit, and hence

lawfully

acquired, cannot be

transported

through the waters of these districts during the closed season. Plaintiffs take their salmon in the waters of the Pacific Ocean outside the limits of the districts, and transport them to the city of Eureka for sale. The statute does not prohibit them from taking or selling the fish; it is aimed' solely at transporting them through the designated waters. Plaintiffs therefore urge its unconstitutionality on the following chief grounds: First, that it violates the commerce clause of the federal Constitution by interfering with the transportation into this state of property lawfully acquired outside the jurisdiction; second, that it violates the equal protection clause of the Fourteenth Amendment to the federal Constitution by discriminating between fishermen and carriers similarly situated.