McGeorge School of Law

Proposition 5 (1938)

Fishing Control

Adam S. Towers

Copyright© 2000 By McGeorge School of Law, University of the Pacific

JD McGeorge School of Law, University of the Pacific, to be conferred 2001,
B.A. University of California, Santa Barbara, 1998.


Election Date: November 8, 1938.
Percentage Voting for Initiative: 62%

Synopsis: Proposition 5 is a valid law that attempts to curtail fishing operators from avoiding California fish conservation laws and taxes by taking their catches to floating fish reduction plants located beyond California's three-mile coastal jurisdiction. To curtail this abuse, Proposition 5 requires special permits for all fishing operators who catch fish in California waters.


Proposition 5, also known as the "Fishing Control Initiative," dealt with the problem of deep sea fishing operators catching fish off California's coast and avoiding state conservation laws by delivering and selling their catch to reduction plants located beyond the territorial waters of California. (Fishing Control, California Voter Pamphlet, p. 12 (1938) (hereinafter Voter Pamphlet).) In essence, the Fishing Control Initiative sought to conserve California's coastal fish supply by preventing boats without a special permit from catching California fish within the state's three-mile coastal jurisdiction and delivering them to floating reduction plants beyond the state's coastal jurisdiction. (Id. at 13) To meet these purposes, Proposition 5, which was voted into law in 1938, added section 1110 (now section 7891) to California's Fish and Game Code.

Before Proposition 5 passed, there had been a sharp increase in floating fish reduction plants beyond California's three-mile coastal jurisdiction (Id. at 12) These water bound facilities were used to process fish at sea. (Id.) The reduction plants reduced sardines into fish-meal and oil while at sea and avoided California's conservation restrictions and fish tonnage taxes by operating just beyond the imaginary three-mile-line off California's coast. (Mirkovich v. Milnor, 34 F. Supp. 409, 412 (1940).) These plants, however, were being supplied with fish that were caught within California's waters by California-based boats. (Voter Pamphlet, supra, at 12.) Proposition 5 sought to curtail this abuse.

The new law required fishing boats that operated within California's jurisdiction to have special permits, which the Fish and Game Commissioner (hereinafter "Commissioner") could issue. (Cal. Fish & Game Code § 7891 (West 2000).) With the floating fish reduction plants operating in international waters, and thus outside California's jurisdiction, California could not exercise direct control over the facilities. (Voter Pamphlet, supra, at 12.) To deal with this problem, Proposition 5 targeted the fishing boats that supplied the processing plants. The initiative allowed the Commissioner to require that fishing boats have a permit if they delivered or assisted in delivering California fish caught in California waters to locations beyond its coastal jurisdiction. (Cal. Fish & Game Code § 7891.) Furthermore, the Commissioner could seize the fishing boat, nets, and gear for boats that engaged in the prohibited fishing without a permit. (Id.) Upon seizing any such fishing property, the law allowed the Commissioner to sue the violator in state court for forfeiture of the seized property. (Mirkovich, 34 F. Supp. at 410.)

The Fish and Game Commission, the Governor, conservation clubs and societies, chambers of commerce, and the American Legion strongly endorsed Proposition 5. (Voter Pamphlet, supra, at 12.) Meanwhile, the San Joaquin Valley Poultry Producer's Association, Fisherman's Produce Company, and organized labor groups opposed the initiative. (Id. at 13.)


In 1940, the owner of a fishing boat that delivered its catch to floating reduction plants sued in federal court to prevent the Fish and Game Commission from enforcing section 1110 of the Fish and Game Code. (Mirkovich, 34 F. Supp. 409.) Mirkovich claimed the law violated the U.S. Constitution because it inappropriately interfered with interstate and foreign commerce. (Id. at 410.) He further claimed that the section violated his procedural due process rights of the Fourteenth Amendment of the Constitution. (Id.)

The court rejected Mirkovich's claim that section 1110 is an unlawful interference with interstate and foreign commerce. The court found that section 1110 did not purport to regulate commerce beyond California's jurisdiction. (Id. at 411). Rather, the law relates solely to fishing operations within state waters. (Id.) Nor does the law control movements of fishing vessels in foreign or interstate commerce and it does not affect importation into the state. (Id.) Furthermore, to the extent that section 1110 does affect exportation of fish taken from California's waters, the Commission's action would be justified because the state could impose any conditions on the taking and use of fish within its waters as long as the conditions are reasonably necessary for the conservation of its fisheries and for the beneficial use Californians. (Id.) The court held that there was a reasonable relationship between section 1110 and fish conservation. (Id.) Hence, the law did not violate the commerce clause of the U.S. Constitution.

With regard to the alleged due process infringements, the court noted that although a violation of section 1110 called for the seizure and forfeiture of the boat, the property could not be taken by summary confiscation. (Id. at 413.) Instead, the law provides that a proceeding in forfeiture occur in the superior court of the county in which the seizure was made, and that a hearing take place before any order of forfeiture is entered. (Id. at 413).The court found that these procedures satisfied the procedural due process clause of the 14th Amendment. (Id.)

The court further held that California properly relied on its police and legislative powers when its voters enacted Proposition 5. It reasoned that requiring a permit for fishing operations within California waters falls within the state's police powers to monitor its waters in an attempt to control the fish supply. (Id. at 412.) Additionally, section 1110 did not conflict with California's legislative powers because the law purported to regulate activities within the state's three-mile territorial jurisdiction. (Id. at 411.)

In sum, the court held that Proposition 5 was valid because it did not unreasonably interfere with interstate or foreign commerce; did not violate the due process clause of the 14th Amendment of the U.S. Constitution; and was a valid exercise of California's legislative and police powers.

The next attack on Proposition 5 came in 1942, two years after Mirkovich, but this time in state court. In Santa Cruz Oil Corp. v. Milnor, the plaintiff, another owner and operator of a fishing boat that delivered its catches to a fish reduction plant outside of California's jurisdiction, raised similar issues and arguments as those reviewed by the Mirkovich court. (Santa Cruz Oil Corp. v. Milnor, 55 Cal. App. 2d 56 (1942).) In addition to the arguments in Mirkovich, the plaintiff in Santa Cruz argued that section 1110 violated California's constitution because "it lacked the required legislative title" when it was submitted to the voters. (Id. at 58.) Specifically, the plaintiff argued that under section 24 of article IV of the state's constitution, an initiative must embrace one subject, which must be expressed in its title. (Id. at 59.) The court recognized that some confusion existed over conflicting title requirements for initiatives, (i.e. the legislative title versus the ballot title drafted by the state's attorney general). (Id. at 60.) The court, however, validated Proposition 5 because there was no contention that the title (legislative or ballot) entrapped, misled, or deceived voters. (Id.) After adopting the holding in Mirkovich (a lower federal court whose authority does not control in state court), the Santa Cruz court found that section 1110 was valid. (Id. at 62.) In upholding Proposition 5, the state Court of Appeal noted that section 24 of article IV of the state's constitution was not enacted to provide a means of overthrowing legitimate legislation. (Id. at 61.)


Proposition 5 was enacted to preserve California's fish population by abolishing a method employed by fishing operations to avoid the state's conservation laws and fish tonnage taxes. Sixty years ago, the Fishing Control Initiative withstood judicial scrutiny and today remains a valid law, virtually identical to the proposition passed by California's electorate in 1938.