I dissent.
The problem involved in this case is whether the state may by statute exclude aliens who are residents of the state from fishing in the waters thereof when all other persons are permitted to do so. Specifically, in the instant ease, the statute not only discriminates against aliens solely upon the basis of alienage but goes further and excludes only certain classes of aliens, namely, those who are ineligible to citizenship. From a broader viewpoint, inasmuch as the fishing involved is commercial fishing, an age-old means of livelihood, the issue is whether an alien resident may be excluded from engaging in a gainful occupation—from working—making a living.
A mere statement of the problem should compel an answer favorable to the alien if there is any security in our constitutional guarantees. We must assume that the alien is in this country properly. The federal government has chosen to permit his entry and residence here. That course having been adopted, settled principles of constitutional law require that *738the alien be accorded the right to work, engage in commerce and otherwise become a useful member of the crew who pulls his oar in the ship of state. There are several settled principles that must be remembered. The right to work—to earn a living—is secured by the Constitutions, both federal and state. (James v. Marinship Corp., 25 Cal.2d 721 [155 P.2d 329, 160 A.L.R. 900].) The equal protection principle of the Constitution shelters aliens as well as others. As said in Truax v. Raich, 239 U.S. 33, 39 [36 S.Ct. 7, 60 L.Ed. 131, Ann.Cas. 1917B 283, L.R.A. 1916D 545] : “The question then is whether the act assailed [a state statute requiring employers to employ a certain percentage of citizens in proportion to aliens] is repugnant to the Fourteenth Amendment. Upon the allegations of the bill, it must be assumed that the complainant, a native of Austria [an alien], has been admitted to the United States under the Federal law. He was thus admitted with the privilege of entering and abiding in the United States, and hence of entering and abiding in any State in the Union. (See Gegiow v. Uhl, Commissioner, decided October 25, 1915, ante p. 3 [36 S.Ct. 2, 60 L.Ed. 114].) Being lawfully an inhabitant of Arizona, the complainant is entitled under the Fourteenth Amendment to the equal protection of its laws. The description—‘any person within its jurisdiction’—as it has frequently been held, includes aliens. ‘These provisions,’ said the Court in Yick Wo v. Hopkins, 118 U.S. 356, 369 [6 S.Ct. 1064, 30 L.Ed. 220] (referring to the due process and equal protection clauses of the amendment), ‘are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.’ See also Wong Wing v. United States, 163 U.S. 228, 242 [16 S.Ct. 977, 41 L.Ed. 140]; United States v. Wong Kim Ark, 169 U.S. 649, 695 [18 S.Ct. 456, 42 L.Ed. 890].....
“It is sought to justify this,act as an exercise of the power of the State to make reasonable classifications in legislating to promote the health, safety, morals and welfare of those within its jurisdiction. But this admitted authority, with the broad range of legislative discretion that it implies, does not go so far as to make it possible for the State to deny to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood. It requires no argument to show that the right to work for a living in the common *739occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the amendment to secure. Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746, 762 [4 S.Ct. 652, 28 L.Ed. 585]; Barrier v. Connolly, 113 U.S. 27, 31 [5 S.Ct. 357, 28 L.Ed. 923] ; Yick Wo v. Hopkins, supra; Allgeyer v. Louisiana, 165 U.S. 578, 589, 590 [17 St.Ct. 427], 41 L.Ed. 832] ; Coppage v. Kansas, 236 U.S. 1, 14 [35 S.Ct. 240, 59 L.Ed. 441], If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words. It is no answer to say, as it is argued, that the act proceeds upon the assumption that ‘the employment of aliens unless restrained was a peril to the public welfare.’ The discrimination against aliens in the wide range of employments to which the act relates is made an end in itself and thus the authority to deny to aliens, upon the mere fact of their alienage, the right to obtain support in the ordinary fields of labor is necessarily involved. It must also be said that reasonable classification implies action consistent with the legitimate interests of the State, and it will not be disputed that these cannot be so broadly conceived as to bring them into hostility to exclusive Federal power. The authority to control immigration—to admit or exclude aliens—is vested solely in the Federal Government. Fong Yue Ting v. United States, 149 U.S. 698, 713 [13 S.Ct. 1016, 37 L.Ed. 905], The assertion of an authority to deny to aliens the opportunity to earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as chose to offer hospitality.
“It is insisted that the act should be supported because it is not ‘a total deprivation of the right of the alien to labor’; that is, the restriction is limited to those businesses in which more than five workers are employed, and to the ratio fixed. It is emphasized that the employer in any line of business who employs more than five workers may employ aliens to *740the extent of 20 per cent of his employees. But the fallacy of this argument at once appears. If the State is at liberty to treat the employment of aliens as in itself a peril requiring restraint regardless of hind or class of work, it cannot be denied that the authority exists to make its measures to that end effective. Otis v. Parker, 187 U.S. 606 [23 S.Ct. 168, 47 L.Ed. 323]; Silz v. Hesterberg, 211 U.S. 31 [29 S.Ct. 10, 53 L.Ed. 75]; Purity Co. v. Lynch, 226 U.S. 192 [33 S.Ct. 44, 57 L.Ed. 184]. If the restriction to 20 per cent now imposed is maintainable the State undoubtedly has the power if it sees fit to make the percentage less. We have nothing before us to justify the limitation to 20 per cent save the judgment expressed in the enactment, and if that is sufficient, it is difficult to see why the apprehension and conviction thus evidenced would not be sufficient were the restriction extended so as to permit only 10 per cent of the employees to be aliens or even a less percentage, or were it made applicable to all businesses in which more than three workers were employed instead of applying to those employing more than five. We have frequently said that the legislature may recognize degrees of evil and adapt its legislation accordingly. (Consolidated Coal Co. v. Illinois, 185 U.S. 203, 207 [22 S.Ct. 616, 46 L.Ed. 872]; McLean v. Arkansas, 211 U.S. 539, 551 [29 S.Ct. 206, 53 L.Ed. 315]; Miller v. Wilson, 236 U.S. 373, 384 [35 S.Ct. 342, 59 L.Ed. 628]); but underlying the classification is the authority to deal with that at which the legislation is aimed. The restriction now sought to be sustained is such as to suggest no limit to the State’s power of excluding aliens from employment if the principles underlying the prohibition of the act is conceded. No special public interest with respect to any particular business is shown that could possibly be deemed to support the enactment, for as we have said, it relates to every sort. The discrimination is against aliens as such in competition with citizens in the described range of enterprises and in our opinion it clearly falls under the condemnation of the fundamental law.” [Emphasis added.] And the resident aliens are protected in their person and property. “. . . aliens residing in the United States for a shorter or longer time, are entitled, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibil*741ity.” [Emphasis added.] (Fong Yue Ting v. United States, 149 U.S. 698, 724 [13 S.Ct. 1016, 37 L.Ed. 905.) (See, also, Terrace v. Thompson, 263 U.S. 197 [44 S.Ct. 15, 68 L.Ed. 255].)
There is no reason why aliens ineligible to citizenship may be placed in a class by themselves, at least as long as they are residents of the state. The several states have no power to exclude aliens as such from their borders. (3 C.J.S. Aliens, § 33(c); 2 Am.Jur. Aliens, §§ 70, 73; Rottschaefer on Const. Law, p. 375.) Therefore, they cannot be excluded from residence here. Being required to accept them as inhabitants it must accord them the securities afforded others. The only basis for the classification suggested by the majority opinion is that, in furtherance of conservation of natural resources (fish and game), “[Where] 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 he 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.” [Emphasis added.] I can see no logic in depriving resident aliens, even though they are not eligible to citizenship, of the means of making a livelihood, including the pursuit of commercial fishing. They are lawfully inhabitants and residents of the state. Even if it be assumed that nonresidents, both alien and citizens of the United States, may be excluded from game and fish on the theory that such resources belong to the people of the state, the fact remains that resident aliens are a part of the people—the inhabitants and residents of this state. Because some believe that aliens should be punished by such a penalty is no basis for a reasonable classification. There is no sound basis for the argument that because the fish and game belong to the people of the state, the taking of them may be prohibited to all, and that with such a broad power any group of people may be arbitrarily excluded from the right to take any portion thereof. On the basis of that reasoning, the Legislature could validly prohibit persons ineligible to citizenship from using the highways. They belong to the state and the traffic hazards would be less if fewer people were using them. The same is true of the use of the parks, schools and other public buildings and *742places. It could be argued that they are overcrowded and the more people using them, the greater the cost to the public, all to the diminishment of the resources of the state, natural or otherwise. While the state may withhold a privilege if it elects not to grant it, it cannot arbitrarily prevent any member of the public from exercising it while granting such privilege to others. To conclude otherwise would deprive the equal protection principle of all meaning. If aliens are to be given equal protection, and they must, then to put them all in a class by themselves is to refute the very premise of the doctrine. Manifestly, there is no rational basis for the classification. When the lack of a proper ground is patent on the face of legislation, proof of its lack of rationality is unnecessary. Suppose a statute declared that redheaded persons could not engage in certain occupations. Plainly, a redhead could not prove there was no possible reason why the public welfare is more jeopardized by having redheads than others in those callings. lie would simply say all that anyone could say: “That such a classification is pure nonsense,” and there is not a court in the land that would not agree with him.
The denial to resident aliens of equal protection of the laws guaranteed other residents of the state has been accomplished by piecemeal methods. They have been denied the right to engage in first one occupation and then another. It cannot be doubted that a sweeping provision prohibiting them from engaging in any occupation whatsoever would be held invalid. (Truax v. Raich, supra.) The onslaught by the “one at a time” method is fast achieving the same sweeping result. (See 17 N.Y.Univ.L.Q.Rev. 242; 18 id., 483; 16 A.B.A.J. 113; 22 Minn.L.Rev. 137; 39 Cal.L.Rev. 1207.) One of the objectives of the Constitution of the United States, and particularly the amendments thereto, is to protect minorities. Section 1 of the Fourteenth Amendment to the Constitution of the United States provides that “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The words, “any person,” includes an alien. (Truax v. Raich, supra.) Any rational application of this provision to statutes such as the one here involved must result inevitably in striking down such statutes as being in clear contravention of this provision. To permit such a statute to stand is destructive of the fundamental concept upon which that provision is based.
*743Even if we assume that aliens as such may be excluded from some vocations or pursuits, yet there is no conceivable basis for discrimination between different classes, of aliens. In the instant case not all aliens are shut out of commercial fishing. It embraces only those “ineligible to citizenship.’’ Other aliens may follow that enterprise. Thus we have at least one complete answer to the proposition that because the. fish are owned by the people of the state (people being used in the sense of a citizen of the state, and aliens are not citizens) all noncitizens may be excluded from taking the fish. That reasoning requires the exclusion of all aliens. It furnishes no justification for excluding some aliens and not others. The majority opinion suggests no possible basis for such a classification, and I do not believe there is any. Such a classification is based upon a mere ipse dixit and nothing more. The total absence of any rational foundation for such a classification is aptly illustrated by Dudley 0. McGovney, professor of law, University of California, when he states : “Before stating with more precision the scope of rights denied to ‘ineligible aliens’ by these laws, let us look at their racial operation. Aliens of the brown or Malay race, except Filipinos of the same race, and aliens of the yellow or Mongolian race, except Chinese of the same race, are denied rights which aliens of the white or Caucasian race, aliens of the black or Negro race, and aliens of the red or American Indian race are permitted to enjoy without limitation. Thus eligibility of aliens to possess these particular rights follows a very queer pattern, or rather, is patternless, like a crazy quilt if they are Filipino aliens or Chinese aliens.
“There may also be some patches whose race or color is dubious. These are aliens, of races indigenous to British India, called Hindus in the popular parlance of Americans. When naturalization was confined to white and Negro aliens, the Supreme Court held that Hindus are neither, but surely they are not of the red, yellow, or brown races. Whatever their race, dark Hindu patches are included in the crazy quilt.
“The patternless craziness does not end there. Even an alien whose blood is seven-sixteenths Japanese or Korean may [enjoy equal protection of the laws] ... if the other nine-sixteenths is wholly of the red, black, or white race, or Hindu, or Chinese, or Filipino, or a combination of any or all of these. So may any alien who is seven-sixteenths *744Malay if the rest of his blood is wholly of a qualifying kind or a combination of qualifying kinds. The fraction of seven-sixteenths is taken as an example. The actual rule is that if eligible blood preponderates, however slightly, the alien is eligible to acquire real property in California. Here we have the possibility of patches of intermediate color. On the other hand, if Mongolian blood other than Chinese preponderates in the veins and arteries of an alien, or Malay blood other than Filipino predominates, that alien may not get into the quilt.” (35 Cal.L.Rev. 7, 9.)
In applying the equal protection provision of the Fourteenth Amendment to aliens, the United States Supreme Court has drawn distinctions which, when applied to the instant statute, must render it invalid. Assuming the soundness of those distinctions for the sake of precedent alone, and applying them here, it appears that aliens may be shut out of the pool hall business (Clarke v. Deckebach, 274 U.S. 392 [47 S.Ct. 630, 71 L.Ed. 1115]), public employment (Heim v. McCall, 239 U.S. 173 [36 S.Ct. 78, 60 L.Ed. 206]), and the taking of game as a sportsman (Patsone v. Pennsylvania, 232 U.S. 138 [34 S.Ct. 281, 58 L.Ed. 539]). Those cases may be distinguished on various grounds: (1) In all of them the exclusion statutes under consideration included all aliens and not merely those ineligible to citizenship as is true of the statute here involved. (2) They did not concern the problem of a “common employment” from which the alien cannot be debarred. So says the United States Supreme Court in Truax v. Raich, supra. Commercial fishing, with which we are dealing, is a common pursuit with a long historical background. (3) The poolroom business (dealt with in the Clarke case) has long been the subject of especially severe regulation, and it was on that basis the court held the prohibition as to aliens valid, stating at page 397: “The admitted allegations of the answer set up the harmful and vicious tendencies of public billiard and pool rooms, of which this Court took judicial notice in Murphy v. California, 225 U.S. 623 [32 S.Ct. 697, 56 L.Ed. 1229], The regulation or even prohibition of the business is not forbidden. (Citation.) The present regulation presupposes that aliens in Cincinnati are not as well qualified as citizens to engage in this business.” [Emphasis added.] The court stressed the proposition that aliens cannot be discriminated against upon an “irrational” basis. Clearly, there is no rational basis for a distinction be*745tween aliens who are eligible and those who are ineligible to citizenship. Such aliens when engaged in commercial fishing are not in a business intrinsically harmful to the public. (4) The public employment present in the Heim case was based upon the theory that the state may hire whom it pleases as its employees. This is clearly distinguishable from a state law forbidding a certain class of aliens from seeking a livelihood in a common occupation.
The cases holding valid alien land laws (see Terrace v. Thompson, 263 U.S. 197 [44 S.Ct. 15, 68 L.Ed. 255] ; People v. Oyama, 29 Cal.2d 164 [173 P.2d 794]), are expressly distinguished from the case at bar. In distinguishing Truax v. Raich, supra, the United States Supreme Court states in Terrace v. Thompson, supra, 221: “In the opinion [Truax v. Raich] it was pointed out that the legislation there in question did not relate to the devolution of real property, but that the discrimination was imposed upon the conduct of ordinary private enterprise covering the entire field of industry with the exception of enterprises that were relatively very small. It was said that the right to work for a living in the common occupations of the community is a part of the freedom which it was the purpose of the Fourteenth Amendment to secure.
“In the case before us, the thing forbidden is very different. It is not an opportunity to earn a living in common occupations of the community, but it is the privilege of owning or controlling agricultural land within the State. The quality and allegiance of those who own, occupy and use the farm lands within its borders are matters of highest importance and affect the safety and power of the State itself.” [Emphasis added.] Assuming the soundness of that distinction and the alien land law cases, here we have a common occupation or calling, “commercial fishing,” and hence the Truax case controls. “Fishing was one of man’s earliest sources of food supply and it is still one of his most important means of livelihood.” (Encyclopedia of the Social Sciences, vol. III, p. 266.)
Finally, highly persuasive arguments may be made that the law in the instant case is aimed solely at Japanese in an obvious discrimination against a particular race, in spite of the fact that that race is not mentioned by name in the statute, by reason of the historical background of alien legislation and court decisions. (See 35 Cal.L.Rev. 7, 51.) It is *746settled that such legislation is invalid. (See Yick Wo v. Mop-kins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220] ; Yu Cong Eng v. Trinidad, 271 U.S. 500 [46 S.Ct. 619, 70 L.Ed 1059].)
In my opinion, the learned trial judge was right in granting petitioner a peremptory writ of mandate and the judgment should therefore be affirmed.
Gibson, C. J., and Traynor, J., concurred.