ment of delegated powers, the States retaining such powers as they have not delegated or surrendered to it, the people of the several States have surrendered the whole treaty-making power to the Federal Government, and vested it in the President and Senate of the United States (sec. 2, Art. II, U. S. Constitution), and have expressly excluded each State from all power in this regard (sec. 10, Art. I, U. S. Constitution). They have further expressly declared in the Federal Constitution as follows:

"This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." (Sec. 2, art. 4.)

From the first decision of the Supreme Court of the United States upon this subject, rendered in 1796 (Ware v. Hylton, 3 Dall., 198), to the present day, it is uniformly declared, as the express language of the Federal Constitution unequivocally requires, that as to all matters fairly within the treaty-making power conferred by the Federal Constitution a treaty entered into on the part of the United States by the President with the concurrence of two-thirds of the United States Senate is a part of the supreme law of the land, binding on all States, and to which all State enactments in conflict therewith must yield. (See Geofroy v. Riggs, 133 U. S., 258, 266; Hauenstein v. Lynham, 100 U. S., 483.) As was said in Ware v. Hylton, supra: "It is the declared will of the people of the United States that every treaty made by the authority of the United States shall be superior to the constitution and laws of any individual State, and their will alone is to decide. If a law of a State, contrary to a treaty, is not void, but voidable only by a repeal or nullification by a State legislature, this certain consequence follows, that the will of a small part of the United States may control or defeat the will of the whole." As was said in Hauenstein v. Lynham, supra, It must always be borne in mind that the Constitution, laws, and treaties of the United States are as much a part of the law of every State as its own local laws and constitution." The learned attorney general, of course, does not dispute these well-settled propositions:

It is suggested, however, that the subject here covered by the treaty, includIng as it does matters relative to the exercise of their sovereign power of taxation by the several States, is not within the proper scope of the treatymaking power conferred by the people in the Federal Constitution. It is to be noted at once that the treaty provisions in no degree purport to limit the several States in the matter of imposing or collecting taxes, except simply to require that in such matter there shall be no discrimination as against Japanese citizens residing therein, the express provision with regard to taxes being that neither American citizens residing in Japan nor Japanese citizens residing in America shall be compelled "to pay any charges or taxes other or higher than those that are or may be paid by native citizens or subjects." This is simply a provision to prevent discrimination on the part of one against the subjects of the other residing in its territory, placing, in so far as the kind and amount of taxes are concerned, native citizens and the subjects of the other nation upon an equal footing.

It may at once be conceded for all the purposes of this case that there are matters without the proper scope of the treaty power of the United States, matters which could not fairly be held to be included in the grant of that power by the people of the several States to the Federal Government. We are aware of no decision of the Supreme Court of the United States by which a treaty provision has been declared to be beyond the treaty power, but it may fairly be claimed that there are such matters. But that the treaty-making power includes such matters as are covered by the provisions here involved can not be seriously questioned. The rule, as declared in Geofroy r. Riggs (133 U. S. 258, 266), by the Supreme Court of the United States, the ultimate authority on such a question, is that " the treaty power of the United States extends to all proper subjects of negotiation between our Government and the Governments of other nations," and, with regard to such matters, is "in terms unlimited except by those restraints which are found in that instrument against the action of the Government or of its departments, and those arising from the nature of the Government itself and of that of the States."

The court there said that it would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the 76405-21-SER 10-9

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Government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. The court then said: "But with these exceptions (i. e., those stated in portion last above quoted) it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country," citing cases, including our own case of the People v. Gerke (5 Cal., 381). In Geofroy v. Riggs, supra, it was held that it was clear that the protection which should be afforded to the citizens of one country owning property in another, and the manner in which that property may be transferred, devised, or inherited, are fitting subjects for such negotiation and of regulation by mutual stipulations between the two countries. (See also in this connection Hauenstein v. Lynham, 100 U. S., 483, 489, 490.) It seems to us to be too clear to admit of argument that the protection which should be afforded to the citizens of one country residing in another against discrimination in matters of taxation, based solely on their alien citizenship, is a proper subject of negotiation between our Government and the Governments of other nations, and that there is nothing in the provisions under discussion that was beyond the treaty power of the United States.

We have assumed thus far, contrary to a suggestion of the learned Attorney General, that the provisions of the treaty here involved must be construed as applicable to the several States of the United States, as well as in its other territorial possessions. As to this there can not be the slightest doubt. There is no word in the treaty to indicate an intention to make such an unreasonable limitation on its provisions relating to the rights of the citizens of one nation "in the territories of the other," and one so contrary to the whole intent and purpose of a treaty between sovereign nations. The word "territories" used in Article I of the treaty was undoubtedly used as meaning the entire domain over which dominion was exercised by each of the sovereign nations, which, of course, in so far as the treaty-making power was concerned, included all of the States of the United States.

There is no possible escape from the conclusion that in view of the provisions of the existing treaty between the United States and Japan the alien poll tax law is ineffective for any purpose with relation to any citizen of Japan. The complaint under which petitioner is held charges only a violation of this act. It therefore fails to state a public offense as against him.

In view of our conclusion on the matter discussed it is unnecessary in this case to discuss the claim made under the fourteenth amendment to the Constitution of the United States.

It is ordered that the petitioner be discharged from custody.

We concur:

SHAW, J.
LAWLOR, J.

WILBUR, J.

LENNON, J.
SHURTLEFF, J.

SLOANE, J.

ANGELLOTTI, C. J.

Mr. ARMSTRONG. I think you are getting away from the proposition. It seems to me, from listening to the statements which have gone into the record, that the committee, perhaps, does not get the idea clearly; that the preliminary examination which is given in a naturalization office in the large cities as well as the small cities, where we have personal investigation, is practically the same from New York to San Francisco. The preliminary examination is very thorough in Seattle as well as in New York City or Chicago, and it is my own feeling, from being with the other chief examiners and seeing the workings generally, that there are not very many who get by that should not get by. I suggest this because I felt that there was a feeling that in the larger cities, because of the congestion and the mock-court procedure, or whatever it may be called, in running them around like soldiers or cattle in the courts, there was a feeling that there was no thorough examination, and I thought it ought to be understood that there is a thorough examination of all these men outside of the court procedure.

The CHAIRMAN. That is, as thorough as the number of examiners and assistants can make it?

Mr. ARMSTRONG. Yes, sir.

On page 16 of this proposed bill, H. R. 8727, in lines 4 and 5, this clause is inserted: "If in the discretion of the court such posting is necessary." I think

that should be stricken out so as to make it read: "The hearing of the petition may be continued for this purpose and the names of the substituted witnesses may be ordered publicly posted," and not leave that to the discretion of the court.

I have felt for some time that the provision which is contained in this same revision here, and which appears on page 24, in regard to the jurisdiction of the court-it is on page 24, beginning at line 13—“Any declaration of intention to become a citizen of the United States," in which a man files a declaration of intention outside of the district in which he lives, is a thing which should not be in the law.

In stating the proposition let us take the case of a person who goes from Denver, for instance, to Newark, N. J., and has not declared his intention, and while in Newark, N. J., he talks with some of his friends, and they talk citizenship to him, and he goes down in all good faith and files a declaration of intention in Newark.

Mr. VAILE. Mr. Armstrong, this provision here only applies to declarations which have been used for homestead, desert-land, or timber and stone entries.

Mr. ARMSTRONG. I would kill the whole thing, because I would validate a declaration of intention where a man in good faith files such declaration of intention away from the jurisdiction in which he lives.

Mr. VAILE. You would allow that declaration to be used anywhere?
Mr. ARMSTRONG. Yes, sir.

The CHAIRMAN. Let us understand that clearly. You would allow him to do what?

Mr. ARMSTRONG. When a man files a declaration of intention in good faith any place in the United States. I would permit that declaration to be used as the basis for a petition for naturalization in the jurisdiction in which he actually resides later or in the jurisdiction in which he may have resided at the time he did declare that intention.

The CHAIRMAN. That is probably a good suggestion, but what does that do to the two witnesses?

Mr. ARMSTRONG. Nothing at all.

Mr. VAILE. Under this bill it would not affect them at all?

The CHAIRMAN. That is, the two witnesses who might know a man in the southeastern corner of Colorado are not required to know him if he moves over to the northeastern corner, and under the theory just put forward the two witnesses who knew him in New Mexico would not be obliged to know him in Utah; is that the idea?

Mr. ARMSTRONG. No, sir; it is simply that his residence continues in Colorado all the time, but he went to New Jersey and there filed a declaration of intention. He was gone perhaps a week or two weeks or a period of time for which depositions would not be necessary. The court would not require them. He simply says, I was gone on a visit of two weeks," and the court would hold that his residence had been continuous in Colorado all the time. But here comes in a declaration of intention, which under the present law is invalid, and the alien's petitions must be dismissed because he took that two week's journey to the East and while there filed his declaration of intention. His petition is dismissed, and he must file another declaration of intention, wait two years, and then file a new petition for naturalization. You would have to go back to the place I am referring to here and change the jurisdictional requirements.

The CHAIRMAN. That is section 7.

This particular paragraph which reads

"Any declaration of intention to become a citizen of the United States, heretofore made in a court other than the one in whose jurisdiction the alien resided, that has heretofore been used to make a homestead, desert land, or timber and stone entry, is hereby declared to be as legal and valid as if the declaration of intention had been made in the court having naturalization jurisdiction of the place of residence of the alien "

is in here for this reason: We have been called upon and have passed upon one or two occasions a bill to validate such declarations on the part of some first paper fellows who had taken out a homestead in Montana, for instance, and found the names of the counties were afterwards changed and the boundaries were changed and they were left without the right to complete their homesteads in the time given to them. They were special acts, and while we are waiting for this bill to get through, one of those bills involving a case out in Montana has passed the Senate and will be over here pretty soon for this

committee to recommend and pass through the House. The congestion of legislation on the calendar of Congress is now such that it is almost impossible to pass those minor bills, and we undertook to put this language in here so that a man in Colorado or Montana or any other public-land State with first papers and first homestead papers could complete them and go ahead. The very fact that he is trying to get land and is living out there the number of years required for homestead gives the necessary proof.

Mr. ARMSTRONG. My thought is that if a declaration filed anywhere is held to be a valid paper this provision will not be necessary.

The CHAIRMAN. You are probably right about that, and we will take that under consideration.

Mr. ARMSTRONG. In reference to the matter which has been gone over heretofore, in regard to the cancellation of the certificate of naturalization, I wish to emphasize the necessity of putting in also the cancellation and setting aside of the order. We have a case in Colorado in which a man has been naturalized illegally, I think. The order of naturalization stands upon the record, but the certificate of naturalization never has been issued. That man stands as a citizen of the United States without a certificate of naturalization, and the United States attorney refuses to proceed under section 15 to institute proceedings to cancel that certificate, because no certificate has been issued, and there is nothing in the law specifically directed against an order of admission to citizenship.

Mr. VAILE. I think that suggestion was made to us the other day in reference to canceling the order or decree of admission as well as the certificate. The CHAIRMAN. We have a note on that.

Mr. ARMSTRONG. The work in the Denver district is different, of course, from some of the others. I probably should say different from all the others in regard to several of the points relative to handling naturalization cases, and yet in a general way it is all largely the same.

There is one matter which I think has not been sufficiently brought out before the committee, and that is the procedure that is gone through in a good many of the courts in which we have had orders entered in the past which give full credence or faith to a certificate of graduation which is issued from one of these evening schools or citizenship schools with which we are cooperating. That simplifies to a very great degree the court machinery and court procedure. In Denver, for instance, the Opportunity School, which has a national reputation, conducts a citizenship class with wonderful possibilities and wonderful results. A few years ago Judge Lewis, of the Federal court in Denver, was not disposed to give to any schools the quasi judicial function of determining which aliens understood the fundamental principles of American Government to the degree required of a naturalized citizen, and therefore he did not accept any sort of paper from those schools. During the last two years, however, he has received from the candidate for citizenship this certificate of graduation, or diploma, which he has received after attendance at the public school for a certain period of time, generally three months, and has been examined by a representative of the naturalization service and found to understand in a general way the fundamental principles of our Government. The alien has that diploma, or certificate of graduation, in his possession when he comes to court, and questions with regard to his knowledge of our Government are not asked him at all. In all other cases a rather lengthy series of questions are asked of the applicants for naturalization.

Mr. VAILE. Both by the examiner and by the judge?

Mr. ARMSTRONG. The judge during the last year has asked very few questions unless it is a close case in which he does wish to go into the matter more at length. Generally, the judge does not ask many questions. The proceedings in Denver, in Judge Lewis's court, which is the only naturalizing court in the city of Denver at the present time, are very dignified and very solemn and very impressive.

The CHAIRMAN. How many does he handle in a day?

Mr. ARMSTRONG. The calendar will run from 75 to 100 a day, with only one hearing per month.

The CHAIRMAN. Your recommendation is that the court be authorized to take notice of these certificates of graduation?

Mr. ARMSTRONG. I do not think it is necessary to authorize the court to take judicial notice of them. They do it already.

The CHAIRMAN. Then, there is no need of paying any attention to it in the law?

Mr. ARMSTRONG. No, sir.

Mr. VAILE. The courts can satisfy themselves anyway, I suppose?

The CHAIRMAN. Of course; the theory of the Americanization plan as recognized by the Government is that it was gone into in a very small way through a bill from this committee which was passed only a few years ago, and the theory is that as that plan develops and gets on its feet more largely through the voluntary efforts of the citizens of the United States that the courts, and the examiners, too, for that matter, will recognize more and more the product of these schools. That is all there is to real Americanization through teaching.

Mr. VAILE. I wish Mr. Armstrong would go a little more in detail about the way th's Americanization work in Denver is handled. It is a very important matter, and we are rather proud of it out there, and it reflects credit both on the naturalization service and on the public-school system in Denver.

Mr. ARMSTRONG. You mean in Denver itself or throughout the district?
Mr. VAILE. Throughout the district.

Mr. ARMSTRONG. There has been no appropriation from the State itself in the State of Colorado for schools, but there has been an effort on the part of a good many societies and industries to promote general Americanization work. I was on a committee which, during the last two sessions of the legislature, prepared a proposed liw for Colorado, encouraging Americanization or the opening and operation of schools, but the State has taken on official action to date.

In the State of Wyoming, the State appropriates about $5,000 a year for this Americanization work, and that is beginning this fall to bear fruit. I feel very sure that they will make great strides in Wyoming during this present school year, 1921-22. In the State of Utah they have a compulsory registration law, and in that State all aliens are required to register and pay a fee of $10 each. Mr. VAILE. Has that law been tested in the courts yet?

Mr. ARMSTRONG. It has not.

The CHAIRMAN. It is just about to go up to the courts in Utah, is it not? Mr. ARMSTRONG. I do not know. I have not heard of its going into the courts, but there is considerable question regarding the constitutionality of

that law.

The CHAIRMAN. Will you make it a point when you get home to investigate and see what the latest steps are with reference to that matter and notify the committee?

Mr. ARMSTRONG. Yes, sir.

Mr. RAKER. This decision from the California court which has been referred to here is solely and ent rely upon the question of requiring an alien to pay a poll tax when you do not require the citizens to pay it, contrary to the treaty arrangements between Japan and the United States, which does not apply to a man who applies for naturalization and is required to pay fees for his naturalization?

The CHAIRMAN. No; that is another matter.

Mr. RAKER. And does not affect the question of requiring them to register. The CHAIRMAN. Let us see if we can not get harmony as to just what we have in our minds. An alien coming forward to be naturalized can be put through any steps or made to pay any fee that we shall decide by law shall be proper.

Mr. RAKER. I think so.

The CHAIRMAN. That is with reference to a man who desires to be naturalized. We could ask him to pay $3,000 for the first step if we saw fit. That is an entirely different matter from compulsory registration of all aliens by Federal statute.

Mr. RAKER. I think we are clear ourselves on that, but let us not get mixed up at all on these decisions that relate to taxation matters and where it applies to one and not to the other as being relevant to the question of general legislation.

The CHAIRMAN. If at the time of the draft registratioon the law had been broad enough to register every person in the United States above the age of 10 years, or 20 years, it would have been legal and within the Constitution and in conformity with all the treat'es.

Mr. VAILE. It did require the registration of all persons between the ages of 18 and 45.

The CHAIRMAN. Yes; and there was no protest from anybody on the ground of being required to register.

Now, go ahead, Mr. Armstrong.