Thе United States District Court for the District of Massachusetts has certified two questions to this court pursuant to S.J.C. Rule 1:03, as appearing in
“2. Is such a restriction prohibited by the Constitution of the Commonwealth of Massachusetts?” We answer the first question, “Yes, to the extent constitutionally permissible.” We answer the second question, “No, not in the absence of a showing that suсh a restriction bears no reasonable relation to conservation or any other permissible legislative objective.”
The following facts are uncontroverted. The plaintiffs are residents of the town of Bourne and are holders of State commercial fisherman permits issued by the director of the division of marine fisheries. These permits are duly endorsed to permit the taking of shellfish for commercial purposes, pursuant to G. L. c. 130, § 80 (1986 ed.). From 1937 to the present, the town of Wareham has issued town commercial shellfish licenses only to Wareham residents and taxpayers, pursuant to a 1937 town meeting vote, which so limits the issuance of permits “for the taking of clams, quahogs and scallops for market.” That meeting vote also authorized the selectmen “to make such mies and regulations not inconsistent with law pertaining to the taking of scallops, clams, and quahogs as they in their judgment may, from time to time, decide to be for the best interests of the industry.” The 1937 town meeting vote was reaffirmed in substance in town meeting votes in 1942, 1946, and 1953.
In October, 1982, Wareham enforcement officers required the plaintiffs to surrender previously issued town commercial shellfishing licenses because they were not bona fide residents of Wareham. On October 25, 1982, the selectmen of Wareham passed a regulation that forbade the taking of shellfish from town waters for any purpose without a town permit. Also, the *410 regulation denied commercial permits to noncitizens of Wareham. On October 26, the plaintiffs’ requests for a commercial shellfishing permit from the town were denied because they were not Wareham rеsidents.
The plaintiffs then brought an action in the Federal District Court claiming that the regulation was beyond that town’s statutory authority and in violation of the plaintiffs’ State and Federal constitutional rights. The director of the division of marine fisheries intervened in support of the town.
General Laws c. 130, § 52, first par., as appearing in St. 1941, c. 598, § 1, provides: “The selectmen of a town bordering upon coastal waters, if so authorized by their town . . . may control, regulate or prohibit the taking of. . . shellfish . . . within such . . . towns and may . . . make any regulations not contrary to law ... as they deem expedient, including the times, places, methods, purposes, uses, sizes, quantities and any other рarticulars of such taking, and may grant permits . . . subject to any such regulation . . . .” Read literally, this broad language empowers authorized selectmen to refuse to grant commercial shellfishing permits to nonresidents unless that exclusion would violate the State or Federal Constitution or a statute. We are unaware of аny sound reason to read the statute otherwise.
Such a reading receives support from this court’s construction in 1899 of a predecessor statute. In
Commonwealth
v.
Hilton,
Not only is it significant that we have already effectively construed § 52, first par., but it is also significant that the Legislature reenacted the provisions construed in
Common
*411
wealth
v.
Hilton, supra,
in substantially the same form. See R.L. c. 91, § 85 (1902); G. L. c. 130, § 84 (1921 ed.); G. L. c. 130, § 84 (Ter. Ed.); St. 1941, c. 598, § 1. It is a “familiar rule of construction that ‘when the same legislature, in a later statute, use the terms of an earlier one which has received a judicial construction, that construction is to be given to the later statute.’”
Luacaw
v.
Fire Comm’r of Boston,
Our construction of § 52, first par., is consistent with § 52’s over-all grant to municipalities of control over shellfishing. See
Commonwealth
v.
Bragg,
General Laws c. 130, § 80, first par. (1986 ed. & 1987 Supp.), is a State licensing statute that provides, in relevant part, that “a person shall not dig or take shellfish ... for commercial purposes unless he is the holder of a commercial fisherman permit (shellfish) or unless he is the holder of a commercial fisherman pеrmit which has been specially endorsed . . . for the taking of such shellfish.” 3 The last paragraph states that “[t]he director shall promulgate rules and regulations relative to the form, contents and use of all permits issued under this chapter.” Id. The plaintiffs argue that § 80 preempts all local licensing of commercial shellfishing. Altеrnatively, they argue that, even if all local licensing of commercial shellfishing is not preempted, at least local licensing that entirely excludes State permit holders from town waters is preempted, since such exclusion would render a § 80 permit worthless.
*412
The issue of the possible preemptive effect оf § 80 on a local regulation such as the one involved here was recognized, but not decided, in
Commonwealth
v.
Paasche,
It is clear from G. L. c. 130, § 55 (1986 ed.), that the grant of a § 80 permit does not preempt all local licensing of commercial shellfishing. Section 55 prohibits a town from granting certain aliens a commercial shellfishing permit. Interpreting § 80 as preempting all local licensing of commercial shellfishing would render § 55 surplusage, a result not likely to reflect the Legislature’s intent.
We think it is also clear that local exclusion of nonresidents is not preempted by § 80. Section 80 can only be given preemptive effect by our concluding that it repealed by implication so much of the previously enacted § 52, first par., as authorizes such exclusion. See
Commonwealth
v.
Hilton, supra
at 32. “Such repeals have never been favored by our law. Unless the prior statute is so repugnant to and inconsistent with the later enactment that both cannot stand, then the former is not deemed to have been repealed.”
North Shore Vocational Regional School Dist.
v.
Salem,
In addition, our observation in
Bloom
v.
Worcester,
The plaintiffs’ argument for § 80 preemption rests on the incorrect premise that a § 80 permit necessarily implies affirmative authorization to shellfish commercially anywhere in *413 State coastal waters. The statutory language and history, however, indicate that a State permit is intеnded as a necessary, but not necessarily sufficient, condition for commercial shellfishing. It is not true, as the plaintiffs argue, that the State’s issuance of a commercial shellfishing permit under § 80 is worthless if municipalities can exclude nonresidents. A resident licensed by the town cannot commercially shellfish without a State pеrmit.
The legislative objective in enacting § 80 is most clearly demonstrated in St. 1941, c. 598, § 1. There, the second paragraph of § 80 forbade the taking of shellfish for commercial use without a certificate stating that the coastal waters and flats, as well as the shellfish themselves, were free from contamination. The sixth parаgraph of § 80 instructed the director to “promulgate rules and regulations relative to the form, contents and use of all certificates issued under this section . . . and such other rules and regulations ... as will most effectively safeguard the public health and meet the requirements of the United States [and of other States] as to the interstate commerce in fish or shellfish” (emphasis added). Those provisions demonstrate that the § 80 permitting process is primarily intended to safeguard public health and ensure the acceptability of Massachusetts fish and shellfish in interstate commerce. See Report of the Special Commission Established to Consider All Questions Relating to the Taking, Marketing, Shipping, Transportation and Prоpagation of Shellfish, 1929 House Doc. No. 1025, which recommended the licensing for public health purposes of all who sell shellfish. Id. at 27. The same report advised that it would not be wise to interfere with the local control exercised over the shellfishing industry. Id. at 10.
We see nothing in the 1970 revision of the Act or in any other amendment to § 80 thаt indicates a legislative intent to preempt, rather than complement, local licensing. To the contrary, the statute is phrased in the negative: “[A] person shall not dig or take shellfish ... for commercial purposes unless he is the holder of a commercial fisherman permit (shellfish).” The fact that one cannоt commercially shellfish without a State permit does not establish that its holder is entitled to shellfish *414 without any other permits required by localities pursuant to § 52.
In sum, there is no conflict between a § 80 permit and town action to bar nonresident shellfishermen.
4
Therefore, a ban on nonresident shellfishermen is “not contrary to law” under § 52 beсause of § 80. See
Commonwealth
v.
Bragg,
Thus, we answer the first certified question, “Yes, tо the extent constitutionally permissible,” and we turn to the second certified question: “Is [a town’s restriction of commercial harvesting of shellfish to residents or taxpayers of such town] prohibited by the Constitution of the Commonwealth of Massachusetts?”
The plaintiffs’ contention that they may not constitutionally be excluded from сommercial shellfishing in Wareham’s coastal waters on the ground of their nonresidency essentially presents an equal protection argument.
5
Generally, our review of an equal protection claim under the State Constitution is the same as our review of a Federal equal protection claim.
Dickerson
v.
Attorney Gen.,
While the right to engage in any lawful occupation is protected by the State Constitution,
Leigh
v.
Board of Registration in Nursing,
Our task, then, is to determine whether a town’s regulation restricting commercial harvesting of shellfish to residents or
*416
taxpayers of such town bears a “reasonable relation to a permissible legislative objective.”
Zeller
v.
Cantu, supra
at 84, quoting
Pinnick
v.
Cleary,
According to Report of the Department of Natural Resources, 1963 Senate Doc. No. 635, “the fisherman as a rule continues to fish in any locality until fishing in that locality has become unprofitable. He then moves his оperations to new waters until these in turn are exhausted .... Under these methods public beds are worked until all their natural recuperatory power is exhausted, and then it is thrust aside as worthless, a barren area.”
Id.
at 19. That nonresident commercial fishermen, with no stake in the continued viability of the shellfish industry in a particular locality, would be more likely to deplete the beds in that locality than resident fishermen, would be a rational determination. It also would be reasonable to conclude that the exclusion of nonresidents would promote conservation by enabling a locality to expend funds for the protection and cultivatiоn of shellfish pursuant to G. L. c. 130, § 54 (1986 ed.), without fear that overfishing by nonresidents would destroy the shellfisheries. Therefore, a town regulation restricting shellfishing to residents and taxpayers would seem to satisfy Massachusetts constitutional requirements. Nevertheless, in answering the second certified question, we think we should leave open the possibility, however remote it may be, that the
*417
plaintiffs can demonstrate that the facts related to shellfishing and shellfishing beds are such that a residency restriction bears no reasonable relation to conservation or any other permissible legislative objective. See
State
v.
Norton,
Notes
Section 80 was rewritten by St. 1970, c. 861, § 5, and the first paragraph was further amended by St. 1971, c. 442, § 2.
It is relevant that our view is shared by the intervener. Bloom v. Worcester, supra at 159-160.
To the extent a due process claim is also presented, our standard of review is the same as under equal protection principles. See note 6, infra.
While this statement was made in the context of a due process claim, the applicable standard under due process is the same as it is under equal protection. Zeller v. Cantu, supra at 84.