Japanese Exclusion

By the statute in question all liens who have not in good faith declared intention to become citizens of the United States, as specified in Section I (a) are called "aliens" and it is provided that they shall not own land," as defined in clauses (d) and (b) of Section I, respectively. The class so created includes all, but is not limited to aliens not eligible to become citizens. Eligible aliens who have not declared their intention to become citizens are included, and the act provides that unless declarants be admitted to citizenship within seven years after the declaration is made, bad faith will be presumed. This leaves the class permitted so to own land made up of citizens and aliens who may, and who intend to, become citizens, and who in good faith have made the declaration required by the immigration laws. The inclusion of good faith declarants in the same class with citizens does not unjustly disciminate against aliens who are ineligible, or against eligible aliens who have failed to declare their intention. The classification is based on eligibility and purpose to naturalize. Eligible aliens are free white persons and persons of African nativity or descent. Congress is not trammeled, and it may grant or withhold the privilege of naturalization upon any grounds or without any reason, as it sees fit. But it is not to be supposed that its acts defining eligibility are arbitrary or unsupported by reasonable considerations of public policy. The state property may assume that the considerations upon which Congress made such classification are substantial and reasonable. Generally speaking, the natives of European countries are eligible. Japanese, Chinese, and Malays are not. Appellant's contention that the state act discriminates arbitrarily against Nakatsuka and other ineligible aliens because of their race and color is without foundation. All persons of whatever color or race who have not declared their intention in good faith to become citizens are prohibited from so owning agricultural lands. Two classes of aliens inevitably result from the Naturalization Laws-those who may and those who may not become citizens. The rule established by Congress on this subject, in and of itself, furnishes a reasonable basis for classification in a state law withholding from alien the privilege of land ownership as defined in the act. We agree with the Court below (274 Fed. 841, 849) that

"It is obvious that one who is not a citizen and can not become one lacks an interest in, and the power to effectually work for the welfare of, the State, and, so lacking, the State may rightfully deny him the right to own and lease real estate within its boundaries. If one incapable of citizenship may lease or own real estate, it is within the realm of possibility that every foot of land within the state might pass to the ownership or possession of noncitizens." And we think it is clearly within the power of the State to include nondeclarants eligible aliens and ineligible aliens in the same prohibited class. Reasons supporting discrimination against aliens who may, but who will not, naturalize are obvious.

Traux v. Raich, Supra, does not support the appellants' contention. In that case, the court held to be repugnant to the 14th Amendment an act of the legislature of Arizona making it a criminal offense for an employer of more than five workers at any one time, regardless of kind or class of work, or sex of workers, to employ less than 80 per cent qualified electors or native-born citizens of the United States. In the opinion it was pointed out that the legislation there in question did not relate to the devolution of real property, but that the discrimination was imposed upon the conduct of ordinary private enterprises that were relatively very small. It was said that the right to work for a living in the common occupations of the community is a part of the freedom which it was the purpose of the 14th Amendment to secure.

will join them in violating the terms of the enactment and take the risk of forfeiture. Similarly Nakatsuka must continue to be deprived of his right to follow his occupation as farmer until a land owner is found who is willing to make a forbidden transfer of land and take the risk of imprisonment. The owners have an interest in the freedom of the alien, and he has an interest in their freedom, to make a lease. The state act purports to operate directly upon the consummation of the proposed transaction between them, and the threat and purpose of the Attorney General to enforce the punishments and forfeiture prescribed prevent each from dealing with the other. Truax v. Raich, Supra. They are not obliged to take the risk of prosecution, fines and imprisonment and loss of property in order to secure an adjudication of their rights. The complaint presents a case in which equitable relief may be had, if the law complained of is shown to be in contravention of the Federal Constitution.

2. Is the act repugnant to the due process clause or the equal protection clause of the 14th Amendment?

Appellants contend that the act contravenes the due process clause in that it prohibits the owners from making lawful disposition or use of their land, and makes it a criminal offense for them to lease it to the alien, and prohibits him from following the occupation of farmer; and they contend that it is repugnant to the equal protection clause in that aliens are divided into two classesthose who may be and those who may not become citizens-one class being permitted, while the other is forbidden, to own land as defined.

Alien inhabitants of a state, as well as all other persons within its jurisdiction, may invoke the protection of these clauses. Yick Wo v. Hopkins, 118 U. S. 336, 369; Truax v. Raich, Supra, 39. The 14th amendment, as against the arbitrary and capricious or unjustly discriminatory action of the state, protects the owners in their right to lease and dispose of their land for lawful purposes, and the alien resident in his right to earn a living by following ordinary occupations of the community, but it does not take away from the state those powers of police that were reserved at the time of the adoption of the Constitution. Barbier v. Connolly, 113 U. S. 27, 31; Mugler v. Kansas, 123 U. S. 623, 663; Powell v. Pennsylvania, 127 U. S. 678, 683; In re. Kemmler, 136 U. S. 436, 449; Lawton v. Steel, 152 U. S. 133, 136; Phillips v. Mobile, 208 U. S. 472, 479; Hendrick v. Maryland, 235 U. S. 610, 622, 623. And in the exercise of such powers the state has wide discretion in determining its own public policy and what measures are necessary for its own protection and properly to promote the safety, peace, and good order of its people.

And, while Congress has exclusive jurisdiction over immigration, naturalization, and the disposal of the public domain, each state, in the absence of any treaty provision to the contrary, has power to deny to aliens the right to own land within its borders. Hauenstein v. Lynham, 100 U. S. 483, 484, 488; Blythe v. Hinckley, 180 U. S. 333, 340; Mr. Justice Field speaking for this Court (Phillips v. Moore, 100 U. S. 208) said (p. 212) :

By the common law, an alien cannot acquire real property by operation of law, but may take it by act of the grantor, and hold it until office found; that is until the fact of alienage is authoritatively established by a public officer, upon an inquest held at the instance of the government."

State legislation applying alike and equally to all aliens, withholding from them the right to own land, cannot be said to be capricious, or to amount to an arbitrary deprivation of liberty or property, or to transgress the due process clause.

This brings us to a consideration of appellants' contention that the act contravenes the equal protection clause. That clause secures equal protection to all in the enjoyment of their rights under like circumstances. In re. Kemmler, Supra; Giozza v. Tiernan, 148 U. S. 657, 662. But this does not forbid every distinction in the law of a State between citizens and aliens resident therein. In Traux v. Corrigan, 257 U. S. 312, this Court said (p. 337):

"In adjusting legislation to the need of the people of a state, the legislature has a wide discretion and it may be fully conceded that perfect uniformity of treatment of all persons is neither practical nor desirable, that classification of persons is constantly necessary. * * Classification is the most inveterate of our reasoning processes. We can scarcely think or speak without consciously or unconsciously exercising it. It must therefore obtain in and determine legislation; but it must regard real resemblances and real differences between things, and persons, and class them in accordance with their pertinence to the purpose in hand."

The rights, privileges and duties of aliens differ widely from those of citizens: and those of alien declarants differ substantially from those of nondeclarants.

Formerly in many of the states the right to vote and hold office was extended to declarants, and many important offices have been held by them. But these rights have not been granted to non declarants. By various acts of Congress, declarants have been made liable to military duty, but no act has imposed that duty on non declarants. The fourth paragraph of Article I of the treaty invoked by the appellants, provides that the citizens or subjects of each shall be exempt in the territories of the other from compulsory military service either on land or sea, in the regular forces, or in the national guard, or in the militia; also from all contributions imposed in lieu of personal service, and from all forced loans or military exactions or contributions. The alien's formerly declared bona fide intention to renounce forever all allegiance and fidelity to the sovereignity to which he lately has been a subject, and to become a citizen of the United States and permanently to reside therein markedly distinguishes him from an ineligible alien or an eligible alien who has not so declared. By the statute in question all liens who have not in good faith declared intention to become citizens of the United States, as specified in Section I (a) are called "aliens" and it is provided that they shall not own "land," as defined in clauses (d) and (b) of Section I, respectively. The class so created includes all, but is not limited to aliens not eligible to become citizens. Eligible aliens who have not declared their intention to become citizens are included, and the act provides that unless declarants be admitted to citizenship within seven years after the declaration is made, bad faith will be presumed. This leaves the class permitted so to own land made up of citizens and aliens who may, and who intend to, become citizens, and who in good faith have made the declaration required by the immigration laws. The inclusion of good faith declarants in the same class with citizens does not unjustly disciminate against aliens who are ineligible, or against eligible aliens who have failed to declare their intention. The classification is based on eligibility and purpose to naturalize. Eligible aliens are free white persons and persons of African nativity or descent. Congress is not trammeled, and it may grant or withhold the privilege of naturalization upon any grounds or without any reason, as it sees fit. But it is not to be supposed that its acts defining eligibility are arbitrary or unsupported by reasonable considerations of public policy. The state property may assume that the considerations upon which Congress made such classification are substantial and reasonable. Generally speaking, the natives of European countries are eligible. Japanese, Chinese, and Malays are not. Appellant's contention that the state act discriminates arbitrarily against Nakatsuka and other ineligible aliens because of their race and color is without foundation. All persons of whatever color or race who have not declared their intention in good faith to become citizens are prohibited from so owning agricultural lands. Two classes of aliens inevitably result from the Naturalization Laws-those who may and those who may not become citizens. rule established by Congress on this subject, in and of itself, furnishes a reasonable basis for classification in a state law withholding from alien the privilege of land ownership as defined in the act. We agree with the Court below (274 Fed. 841, 849) that

The

It is obvious that one who is not a citizen and can not become one lacks an interest in, and the power to effectually work for the welfare of, the State, and, so lacking, the State may rightfully deny him the right to own and lease real estate within its boundaries. If one incapable of citizenship may lease or own real estate, it is within the realm of possibility that every foot of land within the state might pass to the ownership or possession of noncitizens." And we think it is clearly within the power of the State to include nondeclarants eligible aliens and ineligible aliens in the same prohibited class. Reasons supporting discrimination against aliens who may, but who will not, naturalize are obvious.

In the case before us, the thing forbidden is very different. It is not an opportunity to earn a living in common occupations of the community, but it is the privilege of owning or controlling agricultural land within the state. The quality and allegiance of those who own, occupy, and use the farm lands within its borders are matters of highest importance, and affect the safety and power of the state itself.

The Terraces, who are citizens, have no right safeguarded by the 14th Amendment to lease their land to aliens lawfully forbidden to take or have such lease. The state act is not repugnant to the equal protection clause, and does not contravene the 14th Amendment.

3. The state act, in our opinion, is not in conflict, with the treaty between the United States and Japan. The preamble declares it to be "a treaty of commerce and navigation," and indicates that it was entered into for the purpose of establishing the rules to govern commercial intercourse between the countries.

The only provision that relates to owning or leasing land is in the first paragraph of Article I, which is as follows:

"The citizens or subjects of each of the High Contracting Parties shall have liberty to enter, travel and reside in the territories of the other to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purpose, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established."

For the purpose of bringing Nakatsuka within the protection of the treaty, the amended complaint alleges that, in addition to being a capable farmer, he is engaged in the business of trading, wholesale and retail, in farm products, and shipping the same in intrastate, interstate, and foreign commerce, and, instead of purchasing such farm products, he has produced, and desires to continue to produce, his own farm products, for the purpose of selling them in such wholesale and retail trade; and if he is prevented from leasing land for the purpose of producing farm products for such trade, he will be prevented from engaging in trade and the incidents to trade, as he is authorized to do under the treaty.

To prevail on this point, appellants must show conflict between the state act and the treaty. Each state, in the absence of any treaty provision conferring the right, may enact laws prohibiting aliens from owning land within its borders. Unless the right to own or lease land is given by the treaty, no question of conflict can arise. We think that the treaty not only contains no provision giving Japanese the right to own or lease land for agricultural purposes, but, when viewed in the light of the negotiations leading up to its consummation, the language shows that the high contracting parties respectively intended to withhold a treaty grant of that right to the citizens or subjects of either in the territories of the other. The right to " carry on trade" or "to own or lease and occupy houses, manufactories, warehouses, and shops or "to lease land for residential and commercial purposes," or "to do anything incident to or necessary for trade," can not be said to include the right to own or lease, or to have any title to or interest in, land for agricultural purposes. The enumeration of rights to own or lease for other specified purposes impliedly negatives the right to own or lease land for these purposes. A careful reading of the treaty sufficies, in our opinion, to negative the claim asserted by appellants that it conflicts with the state act.

But, if the language left the meaning of its provisions doubtful or obscure, the circumstances of the making of the treaty, as set forth in the opinion of the district court (Supra 844, 845), would resolve all doubts against the appellants' contention. The letter of Secretary of State Bryan to Viscount Chinda, July 16, 1913, shows that, in accordance with the desire of Japan, the right to own land was not conferred. And it appears that the right to lease land for other than residential and commercial purposes was deliberately withheld by substituting the words of the treaty, "to lease land for residential and commercial purposes for a more comprehensive clause contained in an earlier draft of the instrument, namely, "to lease land for residential, commercial, industrial, manufacturing, and other lawful purposes.

4. The act complained of is not repugnant to Section 33 of Article II, of the State Constitution.

That section provides that "the ownership of lands by aliens * * * is prohibited in this State ** Appellants assert that the proposed lease of

farm land for five years is not "ownership," and is not prohibited by that clause of the State Constitution and cannot be forbidden by the State Legislature. That position is untenable. In State v. O'Connell, 121 Wash. 542, a suit for the purpose of escheating to the State an undivided one-half interest in land, or the proceeds thereof, held in trust for the benefit of an alien, a subject of the British Empire, decided since this appeal was taken, the Supreme Court of Washington held that the statute in question did not contravene this provision of the Constitution of that State. The question whether or not a state statute conflicts with the Constitution of the State is settled by the decision of its highest court. Carstairs v. Cochran, 193 U. S. 10, 16.. This Court "is without authority to review and revise the construction affixed to a state statute as to a state matter by the court of last resort of the State." Quong Ham Wah Co. v. Indusrial Commission, 255 U. S. 445, 448 and cases cited.

The decree of the District Court is affirmed.

3. PORTERFIELD ET AL V. WEBB, ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,

ET AL.

Appeal from the District Court of the United States for the Southern District of California.

Argued April 23 and 24, 1923. Decided November 12, 1923.

Mr. Justice Butler delivered the opinion of the Court.

Appellants brought this suit to enjoin the above-named attorney general and district attorney from enforcing the California Alien Land Law, submitted by the initiative and approved by the electors, November 2, 1920. (Stat. 1921 p. lxxxiii.)

Appellants are residents of California. Porterfield is a citizen of the United States and of California. Mizuno was born in Japan, of Japanese parents, and is a subject of the Emperor of Japan. Porterfield is the owner of a farm in Los Angeles county, containing 80 acres of land, which is particularly adapted to raising vegetables, and which, for some years, has been devoted to that and other agricultural purposes. The complaint alleges that Mizuno is a capable farmer and a desirable person to become a tenant of the land, and that Porterfield desires to lease the land to him for a term of five years, and that he desires to accept the lease, and that the lease would be made but for the act complained of. And it is alleged that the appellees, as Attorney General and District Attorney, have threatened to enforce the act against the appellants if they enter into such lease, and will forfeit, or attempt to forfeit, the leasehold interest to the state and will prosecute the appellants criminally for violation of the act. It is further alleged that the act is so drastic and the penalties attached to a violation of it are so great that neither of the appellants may make the lease even for the purpose of testing the constitutionality of the act, and that, unless the court shall determine its validity in this suit, appellants will be compelled to submit to it, whether valid or invalid, and thereby will be deprived of their property without due process of law and denied equal protection of the laws.

Appellants made a motion for a temporary injunction to restrain appellees, during the pendency of the suit, from bringing or permitting to be brought any proceedings for the purpose of enforcing the act against the appellants. This was heard by three judges as provided in Section 266 of the Judicial Code. The motion was denied.

The act provides in Sections 1 and 2 as follows:

"SECTION 1. All aliens eligible to citizenship under the laws of the United States may acquire, possess, enjoy, transmit, and inherit real property, or any interest therein, in this state, in the same manner and to the same extent as citizens of the United States, except as otherwise provided by the laws of this state.

"SEC. 2. All aliens other than those mentioned in section 1 of this act may acquire, possess, enjoy and transfer real property, or any interest therein, in this state, in the manner and to the extent, and for the purpose prescribed by any treaty now existing between the government of the United States and the nation or country of which such alien is a citizen or subject, and not otherwise."

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Japanese Exclusion: A Study of the Policy and the Law