Torao Takahashi v. Fish and Game Commission/Dissent Reed

by Stanley Forman Reed

United States Supreme Court

334 U.S. 410

Torao Takahashi  v.  Fish and Game Commission

 Argued: April 21, 22, 1948. --- Decided: June 7, 1948

Mr. Justice REED, dissenting.

The reasons which lead me to conclude that the judgment of the Supreme Court of California should be affirmed may be briefly stated. As fishing rights have been treated traditionally as a natural resource, in the absence of federal regulation, California as a sovereign state has power to regulate the taking and handling of fish in the waters bordering its shores. ^[1] It is, I think, one of the natural resources of the state that may be preserved from exploitation by aliens. ^[2] The ground for this power in the absence of any exercise of federal authority is California's authority over its fisheries.

The right to fish is analogous to the right to own land, a privilege which a state may deny to aliens as to land within its borders. Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255. ^[3] It is closely akin to the right to hunt, a privilege from which a state may bar aliens, if reasonably deemed advantageous to its citizens. ^[4] A state's power has even been held to extend to the exclusion of aliens from the operation of pool and billiard halls when a city deemed them not as well qualified as citizens for the conduct of a business thought to have harmful tendencies. Clarke v. Deckebach, 274 U.S. 392, 47 S.Ct. 630, 71 L.Ed. 1115. ^[5]

The Federal Government has not pursued a policy of equal treatment of aliens and citizens. Citizens have rights superior to those of aliens in the ownership of land and in exploiting natural resources. ^[6] Perhaps Congress as a matter of immigration policy may require that states open every door of opportunity in America to all resident aliens, but until Congress so determines as to fisheries, I do not feel that the judicial arm of the Government should require the states to admit all aliens to this privilege.

Certainly Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A. 1916D, 545, Ann.Cas. 1917B, 283, upon which the majority opinion appears to rely in holding that the California statute denies equal protection in attempting to classify aliens by putting restrictions on their right to land fish, is not an authority for such a decision. The power of a state to discriminate against aliens on public works and the exploitation of natural resources was recognized in that case. ^[7] And, at the very time that it was under consideration, this Court also had before it Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206, Ann.Cas. 1917B, 287. ^[8] In that case, Heim attacked the constitutionality of a New York statute which provided that 'In the construction of public works by the state or a municipality, or by persons contracting with the state or such municipality, only citizens of the United States shall be employed; and in all cases where laborers are employed on any such public works, preference shall be given citizens of the state of New York.' ^[9] A unanimous court held that the statute, which was attacked on the ground that it denied aliens their rights under the privileges and immunities, due process, and equal protection clauses of the Constitution, was a constitutional exercise of state power as applied to the construction of New York City subways by private contractors. ^[10] The Constitution that permits the bar of aliens from public works surely must permit their bar from state fishing rights. A state has power to exclude from enjoyment of its natural resources those who are unwilling or unable to become citizens.

If aliens, as I think they can, may be excluded by a state from fishing privileges, I see no reason why the classification established by California excluding only aliens ineligible to citizenship is prohibited by the Constitution. Terrace v. Thompson, 263 U.S. 197, 220, 44 S.Ct. 15, 19, 68 L.Ed. 255. Whatever we may think of the wisdom of California's statute, we should intervene only when we conclude the state statute passes constitutional limits.

Mr. Justice JACKSON joins in this dissent.

Notes

1. Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 425, 56 S.Ct. 513, 514, 80 L.Ed. 772.
2. Even citizens of other states have been excluded by a state from such opportunities. McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248 (planting oyster beds). Fishing licenses discriminating between residents and non-residents are permissible. Haavik v. Alaska Packers Ass'n, 263 U.S. 510, 44 S.Ct. 177, 68 L.Ed. 414.
3. The right of an alien to own land is controlled by the law of the state in which the land is located. Such was the rule of the common law. Collingwood v. Pace, 1 Vent. 413, 86 Eng.Rep. 262. That has long been the law of nations, 2 Vattell, Law of Nations (1883) c. 8, § 114, and has been accepted in this country. Chirac v. Chirac, 2 Wheat. 259, 4 L.Ed. 234; Levy v. McCartee, 6 Pet. 102, 113; Hauenstein v. Lynham, 100 U.S. 483, 25 L.Ed. 628; Blythe v. Hinckley, 180 U.S. 333, 341, 21 S.Ct. 390, 45 L.Ed. 557. Whether the philosophical basis of that power, or the power over fish and game, is a theory of ownership or trusteeship for its citizens or residents or conservation of natural resources or protection of its land or coasts is not material. The right to control the ownership of land rests in sovereign governments and, in the United States, it rests with the individual states in the absence of federal action by treaty or otherwise.
4. Patsone v. Pennsylvania, 232 U.S. 138, 34 S.Ct. 281, 58 L.Ed. 539. In expressing the conclusion of a unanimous Court, Mr. Justice Holmes phrased the rule as follows, in 232 U.S. at pages 145, 146, 34 S.Ct. at pages 282, 283, 58 L.Ed. 539. 'It is to be remembered that the subject of this whole discussion is wild game, which the state may preserve for its own citizens if it pleases.'
5. In that case a unanimous Court, speaking through Mr. Justice Stone, said, 274 U.S. at page 396, 47 S.Ct. at page 631, 1 L.Ed. 1115:
6. The United States limits the rights of aliens as compared with citizens in land ownership in its territories, 8 U.S.C. §§ 71 86, 8 U.S.C.A. §§ 71-86; in disposition of mineral lands, 30 U.S.C. § 181, 30 U.S.C.A. § 181; of public lands, 43 U.S.C. § 161, 43 U.S.C.A. § 161; in engaging in coastwise trade, 46 U.S.C. §§ 11, 13, 46 U.S.C.A. §§ 11, 13; in operating aircraft, 49 U.S.C. §§ 176(c), 521, 49 U.S.C.A. §§ 176(c), 521.
7. 239 U.S. 33, 39, 40, 36 S.Ct. 7, 9, 10, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283: 'The discrimination defined by the act does not pertain to the regulation or distribution of the public domain, or of the common property or resources of the people of the state, the enjoyment of which may be limited to its citizens as against both aliens and the citizens of other states. * * * The case now presented is not within these decisions, or within those relating to the devolution of real property * * *; and it should be added that the act is not limited to persons who are engaged on public work or receive the benefit of public moneys. The discrimination here involved is imposed upon the conduct of ordinary private enterprise.'
8. Truax v. Raich, supra, was aru ed October 15, 1915, and decided November 1, 1915; Heim v. McCall, supra, was argued October 12, 1915, and decided November 29, 1915.
9. 239 U.S. 175, 176, 177, 36 S.Ct. 78, 79, 60 L.Ed. 206, Ann.Cas.1917B, 287.
10. The problem of natural resources was not directly discussed in the opinion. But it is clear that the Court was not unaware of the relation of its decision to the natural resources cases. See 239 U.S. 175, 194, 36 S.Ct. 78, 80, 60 L.Ed. 206, Ann.Cas.1917B, 287. The fact that this case was before the Court at the same time as Truax v. Raich, probably explains the careful reservation of the natural resources and public works problems in that case. See 239 U.S. 33, 39, 40, 36 S.Ct. 7, 9, 10, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283.