What are the privileges and immunities of citizens protected by the constitution? In Corfield v. Coryell, 4 Wn. C.C. 371, 6 Fed. Cas. 546, Washington, J., answered:
"We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature,fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the *Page 88 several states which compose this union, from the time of their becoming free, independent and sovereign."
The constitutional guaranties of equal protection and against special privileges and immunities have ever been construed in the light of the right of the state to exercise its police power. In his work on Constitutional Limitations (8th ed., vol. 2, pp. 813, 817, 824, 825), Cooley says:
"But a State may classify with reference to an evil to be prevented, and if the class discriminated against is, or reasonably might be, considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one, dependent upon experience. . . .
"There are unquestionably cases in which the State may grant privileges to specified individuals without violating any constitutional principle, because, from the nature of the case, it is impossible they should be possessed and enjoyed by all; and if it is important that they should exist, the proper State authority must be left to select the grantees. . . .
"It (the equal protection clause) merely requires that all persons subject to such legislation shall be treated alike, under like circumstances and conditions, both in privileges conferred and liabilities imposed. It is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, andreasonable grounds exist for making a distinction between thosewho fall within such class and those who do not." (Italics mine.)
And in Patsone v. Pennsylvania, 232 U.S. 138, 34 S. Ct. 281, Mr. Justice Holmes, speaking for the court, said: "It is not enough to invalidate the law that others may do the same thing and go unpunished."
This principle has been repeatedly applied in upholding legislation discriminating in favor of one class *Page 89 of citizens against all others in the right to fish in the public waters of the state. In State v. Leavitt, 105 Me. 76,72 A. 875, 26 L.R.A. (N.S.) 799, the court had before it a municipal ordinance which provided:
"`No person shall take or dig or destroy in any manner clams in any of the shores or flats within the town of Scarboro . . .
"`The aforesaid section shall not apply to inhabitants or residents of said town taking clams for the use of himself and family nor to hotel keepers within the town taking clams for the use of their hotels.'"
Holding the ordinance a constitutional exercise of the police power, the court said:
"Although there are a few authorities which seem to hold that a public right of fishery is inalienable by the State, the great weight of authority and judicial expression is to the effect that the State in the exercise of its power of regulation and control may grant exclusive rights of fishery to individuals. Com. v.Hilton, supra, [174 Mass. 29, 54 N.E. 362, 45 L.R.A. 475]; Com.v. Vincent, 108 Mass. 441; Burnham v. Webster, 5 Mass. 265 (which was a Scarboro case); Cleaveland v. Norton, 6 Cush. (Mass.) 380; Wooley v. Campbell, 37 N.J.L. 163; Gough v.Bell, 22 N.J.L. 441; Lakeman v. Burnham, 7 Gray 437;Hathaway v. Thomas, 16 Gray 290; Com. v. Bailey, 13 All. (Mass.) 541; Chalker v. Dickinson, 1 Conn. 382 [6 Am. Dec. 250]; Hickman v. Swett, 107 Cal. 276 [40 P. 420]; Ex ParteMaier, 103 Cal. 476 [37 P. 402, 42 Am. St. 129]; Geer v.Connecticut, 161 U.S. 519 [16 S. Ct. 600, 40 L. Ed. 793]. SeeMoor v. Veazie, 32 Me. 343 [52 Am. Dec. 655]; Mullen v. LogDriving Co., 90 Me. 555 [38 A. 557]. . . .
"But discrimination, to be constitutional, must be based upon some reasonable ground, — some difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection. Gulf, Colorado Santa Fe Ry. v.Ellis, 165 U.S. 150 [17 S. Ct. 255, 41 L. Ed. 666]; State v.Montgomery, 94 Me. 192 [47 A. 165, 80 Am. St. 386]. *Page 90 It must be reasonable and based upon real differences in the situation, condition or tendencies of things."
Turning now to initiative No. 77, let us examine it in the light of these principles. The obvious and sole purpose of the act is conservation of salmon. As such we have upheld it against attack by the owners and operators of fish traps. State ex rel.Campbell v. Case, 182 Wash. 334, 47 P.2d 24. The consequence of that decision was to recognize the legislative power to discriminate against fishermen using one kind of gear in favor of those using another. In that case, we said:
"The relator next contends that the act is unconstitutional as being an arbitrary, unreasonable and whimsical exercise of the police power of the state, depriving him of his property without due process of law. Relator's argument under this head is devoted largely to questions of policy and the economic importance of the salmon industry in this state. These issues are for the legislative authority of the state to determine and doubtless were brought to the attention of the electors of the state in the canvass preceding the adoption of initiative No. 77. We cannot assume to revise their judgment upon these questions of policy and expediency."
And quoting from Smith v. State, 155 Ind. 611, 58 N.E. 1044, 51 L.R.A. 404, we further said:
"`The individual has no natural right to take game, or to acquire property in it, and all the right he possesses or can possess in this respect is granted him by the state.'"
The discrimination approved in that case, of course, was predicated on the ground that the continued use of traps and other fixed gear might eventually exterminate the salmon.
Now, the gill net is somewhat of the nature of a trap, in that it is set in a fixed location in waters *Page 91 through which the salmon run. If the gill net is permitted to be used by all who apply for license, obviously the evils sought to be corrected by the abolition of traps will continue unabated. For it is certain that licenses will be obtained for gill net operations at every trap location abolished in the waters described in the act.
It was doubtless this probability that caused the framers of the act to discriminate, in gill net operations, in favor of those who held licenses in either of the years 1932 or 1933. Doubtless (at least we are to presume), a survey showed that gill netting could be continued by such number of fishermen as held licenses in 1932 and 1933 without menacing the salmon industry as a whole — without fear of extermination.
Finally, to uphold this provision of the act will not deprive relator of a privilege of which he has heretofore availed himself. On the other hand, the effect of this decision will be to deprive others of a livelihood — a privilege of which they had availed themselves and which they had exercised for years. For, if gill net licenses must be issued to all who apply, it is obvious that, in the interest of conservation, the gill net must go the way of the trap.
Since the discrimination with respect to gill net operations is based on reasonable and substantial grounds, the provisions of § 4 are not violative of any constitutional guaranty to which relator can lay claim. I dissent.
MILLARD, C.J., concurs with BLAKE, J. *Page 92