Takahashi v. Fish and Game Commission Respondents' Brief in Reply to Amici Curiae

    13 THE SUPREME COURT OP THE UNITED STATES 
October Term, 19**7

0 TAKAHASHI,
Petitioner,

v.
FISH AND GAME COMMISSION LEE P. 
PAYNE, as Chairman thereof, W. B. 
WILLIAMS, HARVEY E. HASTAIH, and 
WJ'jLIAM SILVA, as members thereof,

Respondents.

i’ i / f ' t ' J  L i

MAY 7 m
'x:::;' n ® 5  can

Ho. 533

INC.

On Writ of Certiorari to the Supreme Court 
of the State of California

RESPONDENTS * BRIEF IN REPLY TO AMICI CURIAE

FRED N„ HOWSER. Attorney General |
of the State of California 

RALPH W. SCOTT, Deputy 
600 State Building 
San Francisco 2, California

Attorneys for Respondents.



SUBJECT INDEX

Page

SECTION 990 IS NOT BASED ON RACE OR COLOR
THERE WAS NO EVIDENCE INTRODUCED BY THE PETITIONER IN THE TRIAL COURT
CHAPTER 181 (CALIF. STATS. 1.945 ) SHOULD 
BE CONSTRUED AS A WHOLE 0 IF 50 CONSTRUED 
ITS HISTORY SHOWS THAT IT IS NOT ANTI-JAPANESE
COMMERCIAL FISHING IS NOT A COMMON OCCUPATION
THE CHALLENGED STATUTE IS A CON­SERVATION MEASURE , I
SECTION 990 WAS CONSTRUED AS A CON­
SERVATION MEASURE BY THE HIGHEST COURT 
IN CALIFORNIA» THIS CONSTRUCTION SHOULD 
BE FOLLOED BY THE UNITED STATES SUPREMECOURT.
PETITIONER CANNOT LIMIT HIS FISHING TO THE HIGH SEAS
PETITIONER DOES NOT PRESENT A RECORD 
WHICH SHOWS HE CAN BE AFFORDED ANYRELIEF

1

3

6

1 1

13

15

17

2C



TABLE OP AUTHORITIES

Cases:
Alsos v . Kendall, 227 ?ae„ 286
Bayside Pish Flour Co. v. Gentry, 297 U.S. 422
Geer v. Connecticut, 161 U.S. 519
In re Ah Chong, 2 Fed. 753
Koramatsu v„ United States, 323 U.S, 239
Llndsley v. Hatural Carbonic Gas Co-

220 u. S. 61, 78, 79
Lubetlch Vo Pollock, 6 Fed. 2d 237 
McReady v. Virginia, 90 U. S, 391 
Morehead v.Hew York, 298 U. S. 587 

State v. Catholic, 75 Ore. 367, 147 Pac. 372 

State v. Leavitt, 105 Me. 76, 72 Atl. 875 

Terrace Y. Thompson, 263 U. 3. 197 

Thomson v. Dana, 32 Fed 2d 759

Statutes:
Calif. Stats. 1945, Chap. 181 
Calif. Stats. 1947, Chap. 1329
56 Stat. 182
58 Stat. 827
59 Stat. 658

Texts:
Webster's International Dictionary,

2d edition



IN THE SUPREME COURT OP THE UNITED STATES 
October Term, 19^7

TORAO TASAHASHX j )

Petitioner, \

v. | Ho. 533
PISH AND GAME COMMISSION, LEE F„ \
PAYNE3 as Chairman thereof, W„ Be I
WILLIAMS, HARVEY E. HASTAIN, and. )
WILLIAM SILVA, as members thereof, |

Respondents, }

RESPONDENTS * BRIEP IN REPLY TO AMICI CURIAE

SECTION 990 IS NOT BASED ON RACE 
OR COLOR

Of all the amici curiae briefs, the one filed by 
the United States comes closest to a dispassionate consid­
eration of section 990 of the Pish and Game Code, It avoJ.ds 
such tangential Issues a3 to whether California is ’’anti- 
Japanese'* and was actuated by dislike for the Japanese when 
chapter 181, Calif, Stats. 19^5* was enacted. It comes 
directly to the proposition that any alien Ineligible to 
citizenship may attack section 990 with as much propriety 
as the petitioner, Irrespective of whether he Is a Malayan



02? a member of any of the so-called Asiatic races (pps. 4 
and 5, brief for the United States). It argues that the 
difficulty with section 990, as amended in 1945, is that It 
draws the line "based on race and color" (p. 4) and that if 
the petitioner wore a Malayan his attack "would surely have 
no less merit” (p. 5). The contention is then made that 
section 990 of the Pish and Game Code is based on race and 
color. Such a conclusion, however, can only be reached by 
reading the Nationality Act of 1940 (54 Stat. 1157, as 
amended) into the California statute.

The fundamental difficulty with this argument is 
that California did not base chapter l3l on race and color.
It based Its statute on Ineligibility to citizenship and on 
the relative proximity of the particular groups to beneficial 
ownership of the fish and game. The Congress determined 
which groups of persons are eligible and which are ineli­
gible to citizenship. California as a sovereign state had 
no part In the determination. If tomorrow Congress should 
decide that any group of white aliens thereafter would be 
ineligible to citizenship, such persons would be affected 
by section 990 of the Fish and Game Code irrespective of 
race or color. Conversely, the Congress might at any time 
permit alien Japanese to become citizens. It presently con­

-2-



templates such action (H. R. 500̂ )., In the past It did so 
in the case of Chinese and persons Indigenous to India. It 
could similarly deny eligibility to citizenship to persons 
or nationals now eligible and such persons could not then 
contend with propriety that the California statute was 
aimed at them on account of their race, color or nationality.

In short, it is the respondent9e contention that 
chapter l8l, California Stats. 19^5 is not racial and tho 
Nationality Act of 19^0 does not make it so. How can it 
logically be urged that section 990 is based on race and 
color when persons of the yellowand brown races are eli­
gible to citizenship and hence may fish commercially in 
California? Chinese and Hindus belong to the so-called 
yellow or brown races; yet they qualify for commercial 
fishing licenses. The argument that the statute is based 
on color falls of its own weight, since persons of all 
color are penaltted to fish commercially in California.

THERE WAS NO EVIDENCE INTRODUCED BY 
THE PETITIONER IN THE TRIAL COURT

The petitioner as veil as the amici are imbued 
with the erroneous idea that there is any evidence in this 
case. At pages 9 and 10 of the brief for the United States

-5-



It Is assarted that the “impressive evidence assembled by 
the petitioner" refutes the idea that section 990 was in­
tended as a conservation measure. Counsel for the peti­
tioner pointed out in oral argument that thore was no evi­
dence offered because only issues of law are involved. 
nevertheless after the trial and during the appeal the 
petitioner and the amici would Inject into the case, argu­
endo, statements which are largely the conclusions and 
opinions of various persons and would not be admissible if 
offered in evidence in the trial court. They seem to 
think that the printed word Is beyond challenge. For ex­
ample, at pages 27 and 28 of his brief the petitioner 
points out that Mr. Howard Goldstein says there were no 
fishermen ineligible to citizenship who fished in Cali­
fornia except two Koreans and a Guamese. Apparently the 
amici rely on the same incompetent evidence. They neglect, 
however, to point out that Mr. Goldstein was the employee 
of petitioner or his counsel and that the magazine “Pacific 
Citizen" which contained the Goldstein "Survey" Is the 
official publication of the Japanese American League. The 
petitioner and the amici leave it to respondents to do so. 
The respondents took pains at pages 24 and 25 of their brief 
to point to two possible errors In the Goldstein report,

-4-



the purpose being to show that If the report la incorrect 
in some respects it is apt to be Incorrect in others.

The only evidence In this case Is the deposition 
of Miss Geraldine Connor, a witness for the petitioner 
(R. 26-29),. This deposition was only introduced by stipu- 
lation. Respondents also have no objection to the con­
sideration of any statistical data contained in its Pish 
Bulletins or Biennial Reports. But they do object to the 
consideration of the mass of Incompetent '’evidence'1 pro­
duced for the first time on appeal by petitioner and some 
of the amici which ”evidence"was never offered In the trial 
court.

The briefs of the Japanese American Citizens 
League and other amici are replete with excerpts from mag­
azines, books, etc. and with the conclusions and opinions 
of various persons. The respondents, of course, have never 
had an opportunity to crosa-exaalne Mr. Goldstein, or any 
other persons whose conclusions are set forth In the briefs. 
The difficulty here lies in an attempt by the petitioner 
and the amici to prove the case in the reviewing courts. 
That, of course, is contrary to normal procedure where all 
the pertinent evidence is or whould be produced at the 
trial. Here, however, we have exactly the normal process

-5-



in reverse.
As no proof was offered by petitioner in support 

of the allegations of his petition and as the answer denied 
that section 990 of the Fish and Game Code was enacted for 
the purpose of discriminating and administered in a manner 
to discriminate against the petitioner solely because of 
his race, the allegations of the answer must be taken as 
true {see cases citod at page 5 2, brief in opposition to 
petition).

CHAPTER 181 (CALIF. STATS. 19^5)
SHOULD BE CONSTRUED AS A WHOLE.
IF SO CONSTRUED ITS HISTORY SHOWS 
THAT IT IS NOT ANTI-JAPANE3E

The amici and the petitioner alike fail to con­
sider the rule of the statutory construction that a stat­
ute must be considered as a whole (R. 4l). As pointed out 
at page 5 of our brief in opposition to the petition the 
statute dealt not only with commercial fishing licanses 
but also the hunting licenses and sport fishing licenses.

The brief of the Japanese American Citizens 
League goes to considerable length to try to show anti- 
Japanese sentiment in California during the war years.
Such argument is idle. The League concedes, however, that
the legMation of 19^7 and 1948 showed a turn for the*

-6-



bettor as far as Japanese are concerned because In 1947 

there vas only one "unfavorable measure passed" In 
19^8 "there vas nothing" (page 45). The League, however, 
fails to say there vas anything favorable passed. It does 
jiCt mention Stats. Cal. 1947, Chap. 1529, whereby sections 
4^7 and 428 of the Fish and Game Code was amended so as to 
permit aliens ineligible to citizenship to enjoy hunting 
and sport fishing privileges. If California Is"anti-Japanese" 
this action of the 1947 legislature does not so Indicate.

It is undoubtedly true that in 1945 Californians 
as well as all persons in the United States wore not fav­
orably impressed by the Japanese. The action of the leg­
islature at that time in denying alien Japanese hunting 
as well as sport fishing and commercial privileges would 
unquestionably have been upheld under the clear and present 
danger doctrine (Korematsu v. United States. 525 U.S. 259).
In 1945 the Korematsu case had not been decided and Cali­
fornia did not know whether the Japanese would be returned 
from the concentration camps. If this Court had decided
that the Japanese should be returned, it wou3.d manifestly•
be absurd to give them hunting privileges whereby they 
could arm themselves with a 50 caliber rifle to hunt deer 
or to give them commercial fishing licenses to fish In 
ocean waters. While It Is quite possible the United States

-7-



Coast Guard would have never permitted them to leave port, 
nevertheless, the possession by alien Japanese of* commer­
cial fishing licenses during var time might have complicated 
an already aggravated situation.

In 19^5 there was a large influx of military per­
sonnel into California,, The State was practically an armed 
camp. Such military personnel were granted the privilege 
of sport fishing free of charge. This put a tremendous bur­
den on the sport fishes of California. By the same token 
such persons hunted virtually at will, and there was simi­
lar pressure on the game. At that time also there had been 
a large Influx of commercial fishermen into the State (see 
respondents * brief, page 5 1 ) and by the end of19*5 it was 
very evident to the legislature that the ocean fisheries 
were facing exhaustion (see Pish Bulletin 67, page 7} see 
also pages 10 and 11 respondents’ brief). At that time it 
was clear that If the ocean fisheries were to be maintained 
there must be a curtailment in the number of commercial 
fishermen.

The brief of the National Association For The Ad­
vancement of the Colored People (page 7 ) cites the 19^0 Cen­
sus, page 2 , as authority for a classification of aliens ac-

1. Fish Sulietin bj has been lodged with the Clerk.

-8-



cording to eligibility to citizenship. The petitioner makes 
the same statement (page 14 of his petition). Our perusal 
of that Census does not disclose any ol&sslftcation accord­
ing to citizenship eligibility. The classifications are 
based on nativity. The foregoing amicus reports at page 7 
of it3 brief that there were 33*369 alien Japanese in Cali­
fornia in 1940. Assuming for argument alone that there 
were only 2,962 other aliens ineligible to citizenship, 
the ratio to Japanese would be about 1  to 11. We estimated 
that the ratio of alien Japanese to other ineligible alien 
fishermen was 89 to 1 1 or approximately 9 to 1 (brief, 
page 29). Thus if a mean is taken, It would appear that the 
ratio of alien Japanese to other ineligible aliens in Cali­
fornia would be about 10 to 1. Therefore in 1945 the leg­
islature increased by ten percent (1C$) the number of per­
sons ineligible to hunt or fish. Hence it is obvious that 
the 1945 legislature took a greater step in the direction 
of conservation when it enlarged the classification of per- 
sonsAdenied the privilege of hunting and fishing to all 
’persons ineligible to citizenship".

Moreover in 1945 it may have been apparent to the 
legislature that all alien Japanese were not ineligible to 
citizenship (56 Stat. 182; 58 3tat. 827; 59 Stat. 658), and 
that it would be manifestly unfair to deny fishing and hunt-

-9-



Ing privileges to an alien Japanese who was eligible to cit­
izenship. If a statute is susceptible of two constructions 
the one which will uphold the statute will be adopted rather 
than the on© which will defeat it (Llndsley v. Natural Car­
bonic Qaa Co.. 220 V. S. 61, 78, 79).

In 19^7 the pressure on California sport fishes 
and game was greatly relieved by the termination of hostil­
ities and by the dispersal of the large number of persons 
in the armed forces temporarily quartered in California. 
Therefore, the legislature apparently saw no further need 
for denying aliens ineligible to citizenship the privilege 
of hunting or fishing for pleasure. Hence sections 427 and 

of the Pish and Same Code were amended to permit ineli­
gible aliens to enjoy the privilege of hunting and sport 
fishing. However,the situation with respect to commercial 
fishing was becoming worse. As indicated in our brief 
(pages 3 1 , 3 2) the number of commercial fishermen had gone 
up during the war years but the take of fish had dropped 
off until in 1947 the sardine supply was virtually extinct. 
In 1947 and 1948 fishing boats were obliged to go from 
Monterey and San Francisco to southern California waters. 
Hone of the fish packing plants received enough fish to 
keep them in operation. Fish were at a premium because 
there were no fish. As shown by Fish Bulletin 67 there

-10



are approximately 7^6 eligible aliens engaged in commer­
cial fishing in California. According to the petitioner's 
brief there are at least 700 alien Japanese who vould like 
to enjoy the privilege. Assuming, aa w© pointed out at 
page 29 of our brief that the ratio of alien Japanese to 
other alien fishermen presumably ineligible to citizen­
ship Is approximately 89 to 11 or 9 to 1. Therefore if 
all aliens vere eligible to fish at this time approxi­
mately one-half vould be eligible aliens and the other 
one-half vould b© ineligible aliens. Consequently, it 
is dear that denying the privilege to ineligible aliens 
California made a big step in the direction of conserva­
tion as each fisherman alone accounts for more than 
78,000 pounds of fish.^

COMMERCIAL PISHISQ IS HOT ACOMMON OCCUPATION

All the amici stress the rule in Truax v. Ralsch, 
that an alien cannot be denied the means of livelihood in 
one of the "common occupations'5. They assume that commer­
cial fishing is a '’common occupation" but cite no authority 
in support thereof other than their ovn conclusions. Web-

1. This figure is computed from Pish Bulletin 67 by dividing 
the annual take of fish by the number of commercial fish­ermen.

-11-



3tor’s International Dictionary, 2d edition, defines the 
adjective "common” as belonging or pertaining to manyj 
frequent; customary; usual. There are approximately 
12,500 commercial fishermen in California out of an esti­
mated population of 10,000,000. There are also 13*655 
lavyer3 in California. This number compares favorably 
with the number of fishermen. In other words, if com­
mercial fishing is a "common occupation” so is the prac­
tise of the law.

However, Truax v. Raisch excepts fishing from 
the classification of a common occupation (McReady v, 
Virginia. 90 U. 3. 591).

Pishing is not a common occupation for the rea­
son that it is not open to all persons against the legis­
lative will or the will of the state because it Involves 
the appropriation of the property belonging to the citi­
zens, residents of the State (Alsos v. Kendall, 227 Pac. 
286).

State v. Catholic, 75 Ore. 367, 1^7 Pac, 372, 
also indicates that commercial fishing is not a common
occupation. It holds (page 375);j

. . that before the Fourteenth Amend­
ment Is Infringed by preventing one from 
engaging in such a business (commercial

-12-



fishing) It must appear that Catholic 
had a right to catch salmon which is 
guaranteed to and way be exercised by 
every citizen of the United States 
though a non-rssident of the State.
. . . The business which is protected 
from Interference by state legislation 
must be a calling vhich any person can 
pursue in any place of the United States 
as a common, right." (parenthesis and 
emphasis added)

In short, the case holds that fishing is not a common 
right and it follows that fishing is not a common occupa­
tion. This case va3 cited vith approval in Thomson v.
Dana. 52 Fed. 2d, 759, which, in turn, was affirmed by 
this Court at 285 U. S. 52 9.

THE CHALLENGED STATUTE IS A 
CONSERVATION MEASURE

.The brief of the American Veterans Committee at 
pages 6, 7 , 8 and 9 argues that the statute is not a con- 
servation measure because the "needs of the market will in 
fact be met by the capture of fish by others than in the 
restricted class". The reeds of the market have not been met

-13-



"by the capture of fish toy others, There is a greater de- 
msxid for the fish than there is a supply. It is urged by 
the amici that other measures of conservation such as size 
limits, bag limits, etc. have been adopted by California 
with respect to the commercial fisheries, and that section 
990 which denies ineligible aliens the privilege of fish­
ing does not follow that pattern. From a practical stand­
point there is only one sure and safe way to oonserve com­
mercial fisheries where the fishing is chiefly carried on 
toy the use of nets. That way is to reduce or limit the 
number of fishermen. It Is not practical to prescribe 
a size limit or bag limit on fish which are taken with a 
net. When fishermen encompass a school of fish with a 
net, they do not know the size or the amount of the fish 
until taken ashore and veighed. JHoreover, to count the 
individual fish and measure them for size would be Im­
practical because by the time the count and measure­
ments were made the fish would spoil, Therefore the 
only logical way of conserving the commercial fisheries 
1 b to reduce the number of fishermen eligible to take 
them or to prohibit the taking of them entirely. The 
latter course has been adopted in the case of 3triped 
bass, for example.



Sardines constitute 75 percent of the California 
fisheries and the other fish greatly rely on then for food. 
If the sardines are eliminated the other species would soon 
disperse and seek food elsewhere. At this time California 
does not believe it is necessary to stop all fishing for 
sardines. Otherwise it would have done so. However, by 
eliminating a group of persons constituting about one-half 
of all alien fishermen, the first step in the direction 
of conservation has been taken. If It la found necessary 
to further reduce the number of persons eligible to take 
them presumably this will be done by the elimination of 
all aliens, then non-resident citizens and finally by 
denying the privilege to everyone..

SECTION 990 WAS CONSTRUED AS A CON­
SERVATION MEASURE BY THE HIGHEST 
COURT IN CALIFORNIA. THIS CONSTRUC­
TION SHOULD BE FOLLOWED BY THE UNITED 
STATES SUPREME COURT.

The Supreme Court of California construed Sec­
tion 990 of the Fish and Oame Code as a conservation 
measure (R. 58, 59). It reasoned that if the legislature 
desires to conserve fish and game, it could reasonably 
do so by reducing the number of persons eligible to take 
fish or game. This idea is not novel. In State v.

-15-



Laavltt, 105 Ms, 76, 72 Atl. 875* It was Bald: (page 879)
"» . . Indiscriminate taking might be 
destructive of the fishing Itself . .
. That a state may by regulation 
prevent such destruction we think 
must be conceded, To do this the 
state oust necessarily limit the 
times within which or the number of 
persons by whom they (olams) may be 
taken." (parenthesis and emphasis 
added)

The same principle is recognized in State v. Catholic.
75 Ore, 367, lVf Pac. 572, where it was said at page 575 

that for the purpose of protecting its fish the state 
nmay wholly exclude persons who are 
not residents from catching or tak­
ing fish in its waters,"

'Ph© Catholic case was cited with approval in Thomson v, 
Cana, 52 Fed. 2d, 759* end as pointed out hereinabove, 
affirmed by this Soiirt.

Moreover, the construction placed on the cod© 
section by the California Supreme Court is or should be 
followed by this Court. In Morehead v. Mew lrork. 298

-16-



U. S. 58 7, it was said:
"This Court Is without power to put a 
different construction on the state 
enactment from that adopted by the high­
est court of that state. We are not at 
liberty to consider petitioner's argu- 
ment based on the construction repudi­
ated by that Court. The meaning of 
the statute as fixed by its decision 
must be accepted here as if the meaning 
had been specifically expressed in th© 
enactment." (page 609)

PETITIONER CANNOT LIMIT HIS 
PISHING TO THE HIGH SEAS

Mr. Takahashi intends to fish on the territorial 
waters as well as the high seas. Counsel for Mr. Takahashi 
in the companion case of Tsuchiyame concedes that it is 
impossible and impractical to fish on the high seas alone 
(see pagss 6, 7 and 8, respondents' brief).

If it is impossible for Mi*, Tsuchiysma and the 
200 Japanese fishermen in whose behalf he sued to limit 
their activities to the high seas it is equally impossible 
for Mr. Takahashi to do so. Mr. Takahashi virtually con-

-17-



coflea this in his brief by Indicating that th© fish and 
the fishermen pay little attention to the three-mile 
territorial ocean boundary line (see page 1 2 ). Jloreover 
his brief disputes the allegation of his amended petition 
that h® fished on the high seas since 1915 (Cf. R. 1 and 
6 and page 1 1 , petitioner's brief).

As It is impossible for the petitioner to limit 
his fishing activities to the high seas and as fish taken 
on the high seas are indistinguishable from fish taken in 
territorial waters (Bayslde Fish Flour Co. v. Gentry. 297 
Ho 8 , 422), it follows that the doctrine of sovereign 
state ownership is applicable here. Counsel for petitioner 
concedes that he cannot "limit the issues . . .  to the right 
to fish on the high seas" (see respondent's brief, page 8) 
in the companion case of Tsuchlyama v. Pish and Gam© Com­
mission (K. 26) and It is again urged that the same limita­
tion Is applicable to the case at bar.

Although not cited in petitioner's briefs, ref­
erence was made by his counsel during argument to the oase 

In re Ah Chong. 2 Fed. 753. That case Is also cited 
by some of the amici. That cas© is discussed in the main 
opinion of the Supreme Court of California (R. 41). That 
case was decided in 1880 and Is superceded by Geer v. Con-

-18-



nectiout, 161 U „ S. 519 (1396), Lubetlch v. Pollocks 6
Pod. 2d 237 and others. Moreover, the Ah Chonre case ap­
pears to have been superceded by Terrace v. Thompson.
263 U. S. 197 and allied cases holding that eligibility 
to citizenship furnishes a reasonable basis for classifi­
cation by a state. In the Ah Chong case the court re­
viewed several statutes of California and section art­
icle XIX of Its Constitution which singled out Chinese by 
name. The Tenth Census of the United States showed no 
miscellaneous group of aliens in California. The only races 
disclosed were persons hailing from British America, Eng­
land and Vales, Ireland, Scotland, other parts of Great 
Britain, Germany, Prance, Sweden and Borway, Mexico and 
China. The Ah Chong case turned on two other points, 
namely (l) that th© statute would preclude Caucasian women 
from fishing because they oould not become electors and 
{2} that the statute violated the terms of an existing 
treaty between the United States and China. The Ah Chong 
case went no further than to hold that if one class of 
aliens is permitted to fish the same privilege must b© ex­
tended to all aliens who are protected by treaty. Said 
th© Court:

\

-19-



"Conceding that the State may exclude 
all aliens from fishing in its waters, 
yet if it permits one class to enjoy 
the privilege it must permit all others 
to enjoy, upon like terms, the same priv­
ileges, whose governments have treaties 
securing to them the enjoraont of all 
privileges granted to the most favored 
nation." (2 Fed. 7 3 7) (emphasis added)

PETITIONER DOES MOT PRESEHT 
A RECORD WHICH SHOWS HE CAM 
BE AFFORDED AMY RELIEF

The amici as veil as the petitioner ask this 
Court to reverse the Supreme Court of California. Pre­
sumably in making such a prayer they desire the petitioner 
to be licensed to fish commercially without limitation as 
to place vhere the fish are to be taken. This, however, 
cannot be done on the present state of the record.

The amended judgment of the trial court com­
manded the issuance of a commercial fishing license with­
out qualification as to place of use (R. 21). That judg­
ment was made after the trial court lost jurisdiction and 
Is void (R. 33). The invalidity of the amended judgment

-20-



: conceded by petitioner in. oral argument. Moreover,
.' a-landed judgment gave the petitioner more than h© 

asked lie only wants a commercial fishing license "to 
engage in commercial fishing on the high seas'* (R. 6).
That Is the substance of the prayer of his petition, as 
amended and that is what he got from the trial court 
(R. 7). The respondents cannot issue such a license in 
the absence of legislation providing for a license in 
such form. Moreover, they could not endorse across 
the face of a license (as suggested by petitioner) that 
it is good for fishing the high seas only without vio­
lating their oath of office and the statutes made and 
provided. If the Supreme Court of California is reversed 
the respondents cannot comply with the original judgment 
of the trial court until the 3tate Legislature amends the 
statute and provides for licenses in the form which the 
original Judgment directs. Until that time, the original 
judgment is in effect nudum pactum. Hence all issues,' ex- 
cept the issue raised under this point, are purely abstract 
and hypothetical.

Respectfully submitted,

PISffiD SL HAWSER, Attorney Oen-er 3T

DATED‘.APRIL JO, 19^8
v. iscmr^mw-  ■

Attorneys for Respondents