Sei Fujii v. State of California

Docket No. L.A.
21149
Supreme Court of California
Sei Fujii v. State of California

38 Cal.2d 718 (Cal. 1952) • 242 P.2d 617
Decided Apr 17, 1952
Docket No. L.A. 21149. possess, enjoy, use, cultivate, occupy,

transfer, transmit and inherit real property,
719 April 17, 1952. *719 or any interest therein, in this state, and
have in whole or in part the beneficial use
APPEAL from a judgment of the Superior Court
thereof, in the same manner and to the
of Los Angeles County. Wilbur C. Curtis, Judge.
same extent as citizens of the United
Reversed.
States, except as otherwise provided by the
J. Marion Wright and Owen E. Kupfer for laws of this state.
Appellant. "§ 2. All aliens other than those mentioned
in section one of this act may acquire,
A.L. Wirin, Fred Okrand and Will Maslow, as possess, enjoy, use, cultivate, occupy and
720 Amici Curiae on behalf of Appellant. *720 transfer real property, or any interest
therein, in this state, and have in whole or
Fred N. Howser and Edmund G. Brown,
in part the beneficial use thereof, in the
Attorneys General, Everett W. Mattoon, Assistant
manner and to the extent, and for the
Attorney General, and John F. Hassler, Deputy
purposes prescribed by any treaty now
Attorney General, for Respondent.
existing between the government of the
Ralph G. Lindstrom and Lindstrom Bartlett, as United States and the nation or country of
Amici Curiae on behalf of Respondent. which such alien is a citizen or subject, and
not otherwise. . . .
"§ 7. Any real property hereafter acquired
GIBSON, C.J.
in fee in violation of the provisions of this
Plaintiff, an alien Japanese who is ineligible to act by any alien mentioned in Section 2 of
citizenship under our naturalization laws, appeals this act, . . . shall escheat as of the date of
from a judgment declaring that certain land such acquiring, to, and become and remain
purchased by him in 1948 had escheated to the the property of the state of California. . . ."
state. There is no treaty between this country and

UNITED NATIONS CHARTER
Japan which confers upon plaintiff the right to
own land, and the sole question presented on this It is first contended that the land law has been
appeal is the validity of the California Alien Land invalidated and superseded by the provisions of
Law.1 the United Nations Charter pledging the member
nations to promote the observance of human rights
1 The pertinent portions of the alien land law
and fundamental freedoms without distinction as
(1 Deering's Gen. Laws, Act 261), as
to race. Plaintiff relies on statements in the
amended in 1945, are as follows:
preamble and in articles 1, 55 and 56 of the
721 "§ 1. All aliens eligible to citizenship under charter.2 *721
the laws of the United States may acquire,
1
Sei Fujii v. State of California 38 Cal.2d 718 (Cal. 1952)
It is not disputed that the charter is a treaty, and Valentine v. United States, 299 U.S. 5, 10 [57 S.Ct.
our federal Constitution provides that treaties 100, 103, 81 L.Ed. 5]; Bacardi Corp. v.
made under the authority of the United States are Domenech, 311 U.S. 150, 161 [61 S.Ct. 219, 225,
part of the supreme law of the land and that the 85 L.Ed. 98].)
judges in every state are bound thereby. (U.S. 3 In Foster v. Neilson, certain treaty
Const., art. VI) [1] A treaty, however, does not
provisions were held not to be self-
automatically supersede local laws which are executing on the basis of construction of
inconsistent with it unless the treaty provisions are the English version of the document.
self-executing. In the words of Chief Justice Subsequently, upon consideration of the
Marshall: A treaty is "to be regarded in courts of Spanish version, the provisions in question
justice as equivalent to an act of the Legislature, were held to be self-executing. ( United
whenever it operates of itself, without the aid of States v. Percheman, 7 Pet. (U.S.) 51 [8
any legislative provision. But when the terms of L.Ed. 604].) Chief Justice Marshall's
the stipulation import a contract — when either of language in the Foster case, however, has
the parties engages to perform a particular act, the been quoted with approval in later cases. (
United States v. Rauscher, 119 U.S. 407,
treaty addresses itself to the political, not the
417-418 [7 S.Ct. 234, 239-240, 30 L.Ed.
judicial department; and the Legislature must
425]; Valentine v. United States, 299 U.S.
execute the contract, before it can become a rule
5, 10 [57 S.Ct. 100, 103, 81 L.Ed. 5].)
for the court." ( Foster v. Neilson (1829), 2 Pet.
(U.S.) 253, 314 [7 L.Ed. 415].)3 [2] In determining [4] It is clear that the provisions of the preamble
whether a treaty is self-executing courts look to and of article 1 of the charter which are claimed to
the intent of the signatory parties as manifested by be in conflict with the alien land law are not self-
the language of the instrument, and, if the executing. They state general purposes and
instrument is uncertain, recourse may be had to objectives of the United Nations Organization and
the circumstances surrounding its execution. (See do not purport to impose legal obligations on the
Foster v. Neilson, 2 Pet. (U.S.) 253, 310-316 [7 individual member nations or to create rights in
722 L.Ed. 415]; United States v. Percheman, *722 7 private persons. [5] It is equally clear that none of
Pet. (U.S.) 51, 58-59 [8 L.Ed. 604]; Jones v. the other provisions relied on by plaintiff is self-
Meehan, 175 U.S. 1, 10-23 [20 S.Ct. 1, 5-10, 44 executing. Article 55 declares that the United
L.Ed. 49]; Chew Heong v. United States, 112 U.S. Nations "shall promote . . . universal respect for,
536, 539-543 [5 S.Ct. 255, 256-258, 28 L.Ed. and observance of, human rights and fundamental
770]; Cook v. United States, 288 U.S. 102, 119 [53 freedoms for all without distinction as to race, sex,
S.Ct. 305, 311, 77 L.Ed. 641]; cf. Nielsen v. language, or religion," and in article 56, the
Johnson, 279 U.S. 47, 52 [49 S.Ct. 223, 224, 73 member nations "pledge themselves to take joint
L.Ed. 607].) [3] In order for a treaty provision to and separate action in cooperation with the
be operative without the aid of implementing Organization for the achievement of the purposes
legislation and to have the force and effect of a set forth in Article 55." Although the member
statute, it must appear that the framers of the treaty nations have obligated themselves to cooperate
intended to prescribe a rule that, standing alone, with the international organization in promoting
would be enforceable in the courts. (See Head respect for, and observance of, human rights, it is
Money Cases [ Edye v. Robertson], 112 U.S. 580, plain that it was contemplated that future
598 [5 S.Ct. 247, 254, 28 L.Ed. 798]; Whitney v. legislative action by the several nations would be
Robertson, 124 U.S. 190, 194 [8 S.Ct. 456, 458, required to accomplish the declared objectives,
31 L.Ed. 386]; Cook v. United States, 288 U.S. and there is nothing to indicate that these
102, 118-119 [53 S.Ct. 305, 311, 77 L.Ed. 641];
2
provisions were intended to become rules of law court, that its terms "shall have the force of
for the courts of this country upon the ratification law in those States in which international
of the charter. treaties possess that character, as soon as

they are ratified by their constitutional
The language used in articles 55 and 56 is not the organs." ( 311 U.S. 150, 159 [61 S.Ct. 219,
type customarily employed in treaties which have 224, 85 L.Ed. 98].)
been held to be self-executing and to create rights
It is significant to note that when the framers of
723 and duties in individuals. *723 For example, the
the charter intended to make certain provisions
treaty involved in Clark v. Allen, 331 U.S. 503,
effective without the aid of implementing
507-508 [67 S.Ct. 1431, 1434, 91 L.Ed. 1633, 170
legislation they employed language which is clear
A.L.R. 953], relating to the rights of a national of
and definite and manifests that intention. For
one country to inherit real property located in
example, article 104 provides: "The Organization
another country, specifically provided that "such
shall enjoy in the territory of each of its Members
national shall be allowed a term of three years in
such legal capacity as may be necessary for the
which to sell the property . . . and withdraw the
exercise of its functions and the fulfillment of its
proceeds . . ." free from any discriminatory
purposes." Article 105 provides: "1. The
taxation. (See, also, Hauenstein v. Lynham, 100
Organization shall enjoy in the territory of each of
U.S. 483, 488-490 [25 L.Ed. 628].) In Nielsen v.
its Members such privileges and immunities as are
Johnson, 279 U.S. 47, 50 [49 S.Ct. 223, 73 L.Ed.
necessary for the fulfillment of its purposes. 2.
607], the provision treated as being self-executing
724 Representatives of the *724 Members of the
was equally definite. There each of the signatory
United Nations and officials of the Organization
parties agreed that "no higher or other duties,
shall similarly enjoy such privileges and
charges, or taxes of any kind, shall be levied" by
immunities as are necessary for the independent
one country on removal of property therefrom by
exercise of their functions in connection with the
citizens of the other country "than are or shall be
Organization." In Curran v. City of New York, 77
payable in each State, upon the same, when
N.Y.S.2d 206, 212, these articles were treated as
removed by a citizen or subject of such state
being self-executory. (See, also, Balfour, Guthrie
respectively." In other instances treaty provisions
Co. v. United States, 90 F. Supp. 831, 832.)
were enforced without implementing legislation
where they prescribed in detail the rules governing The provisions in the charter pledging cooperation
rights and obligations of individuals or in promoting observance of fundamental freedoms
specifically provided that citizens of one nation lack the mandatory quality and definiteness which
shall have the same rights while in the other would indicate an intent to create justiciable rights
country as are enjoyed by that country's own in private persons immediately upon ratification.
citizens. ( Bacardi Corp. v. Domenech, 4 311 U.S. Instead, they are framed as a promise of future
150, 158-159 [61 S.Ct. 219, 224, 85 L.Ed. 98]; action by the member nations. Secretary of State
Asakura v. Seattle, 265 U.S. 332, 340 [44 S.Ct. Stettinius, chairman of the United States
515, 516, 68 L.Ed. 1041]; see Maiorano v. delegation at the San Francisco Conference where
Baltimore Ohio R.R. Co., 213 U.S. 268, 273-274 the charter was drafted, stated in his report to
[29 S.Ct. 424, 425-426, 53 L.Ed. 792]; Chew President Truman that article 56 "pledges the
Heong v. United States, 112 U.S. 536, 541-542 [5 various countries to cooperate with the
S.Ct. 255, 257, 28 L.Ed. 770].) organization by joint and separate action in the
4 It should be noted, however, that the treaty achievement of the economic and social objectives
involved in the Bacardi case also contained
of the organization without infringing upon their
a specific provision, not discussed by the right to order their national affairs according to
3
their own best ability, in their own way, and in aliens, and that persons eligible to citizenship are
accordance with their own political and economic given all the rights of citizens regardless of
institutions and processes." (Report to the whether they desire or intend to become
President on the Results of the San Francisco naturalized. Secondly, he contends that the effect
Conference by the Chairman of the United States of the statute, as well as its purpose, is to
Delegation, the Secretary of State, Department of discriminate against aliens solely on the basis of
State Publication 2349, Conference Series 71, p. race and that such discrimination is arbitrary and
115; Hearings before the Committee on Foreign unreasonable.
Relations, United States Senate [Revised] July 9-
The issue of the constitutionality of the Alien
13, 1945, p. 106.) The same view was repeatedly
Land Law is thus again presented to this court,5
expressed by delegates of other nations in the
and we are met at the outset with the contention
debates attending the drafting of article 56. (See
that a re-examination of the question is foreclosed
U.N.C.I.O. Doc. 699, II/3/40, May 30, 1945, pp.
by decisions of the United States Supreme Court
1-3; U.N.C.I.O. Doc. 684, II/3/38, May 29, 1945,
rendered in 1923 upholding the statute. (
p. 4; Kelsen, The Law of the United Nations
Porterfield v. Webb, 263 U.S. 225 [44 S.Ct. 21, 68
[1950], footnote 9, pp. 100-102.)
L.Ed 278]; Webb v. O'Brien, 263 U.S. 313 [44
The humane and enlightened objectives of the S.Ct. 112, 68 L.Ed. 318]; Frick v. Webb, 263 U.S.
United Nations Charter are, of course, entitled to 326 [44 S.Ct. 115, 68 L.Ed. 323]; cf. Terrace v.
respectful consideration by the courts and Thompson, 263 U.S. 197 [44 S.Ct. 15, 68 L.Ed.
legislatures of every member nation, since that 255]. See, also, Cockrill v. California (1925), 268
document expresses the universal desire of U.S. 258 [45 S.Ct. 490, 69 L.Ed 944].) This
thinking men for peace and for equality of rights objection is a serious one, and we have rejected it
and opportunities. The charter represents a moral only after the most careful deliberation.
commitment of foremost importance, and we must
5 See, for example, Porterfield v. Webb
not permit the spirit of our pledge to be
(1924), 195 Cal. 71 [ 231 P. 554]; Mott v.
compromised or disparaged in either our domestic
Cline (1927), 200 Cal. 434 [ 253 P. 718];
or foreign affairs. [6] We are satisfied, however, Dudley v. Lowell (1927), 201 Cal. 376 [
that the charter provisions relied on by plaintiff 257 P. 57]; People v. Osaki (1930), 209
725 were not *725 intended to supersede existing Cal. 169 [ 286 P. 1025]; People v.
domestic legislation, and we cannot hold that they Morrison (1932), 125 Cal.App. 282 [ 13
operate to invalidate the Alien Land Law. P.2d 800] (hearing denied); Alfafara v.
Fross (1945), 26 Cal.2d 358 [ 159 P.2d 14];
FOURTEENTH AMENDMENT OF People v. Oyama (1946), 29 Cal.2d 164 [
THE FEDERAL CONSTITUTION 173 P.2d 794]; cf. Takahashi v. Fish Game
[7a] The next question is whether the Alien Land Com. (1947), 30 Cal.2d 719 [ 185 P.2d
Law violates the due process and equal protection 805] (involving legislation prohibiting
issuance of commercial fishing licenses to
clauses of the Fourteenth Amendment. Plaintiff
aliens ineligible to citizenship).
asserts, first, that the statutory classification of
aliens on the basis of eligibility to citizenship is In 1946, this court applied the rule of Porterfield
arbitrary for the reason that discrimination against v. Webb, 263 U.S. 225 [44 S.Ct. 21, 68 L.Ed. 278],
an ineligible alien bears no reasonable relationship in the case of People v. Oyama, 29 Cal.2d 164 [
to promotion of the safety and welfare of the state. 173 P.2d 794], and in the following year, in
He points out that the land law distinguishes not 726 Takahashi v. Fish Game Com., 30 Cal.2d 719 *726
between citizens and aliens, but between classes of [ 185 P.2d 805], it upheld other legislation which
4
classified aliens on the basis of eligibility to 6 This section provides for a prima facie
citizenship. Both judgments were reversed upon presumption of intent to evade escheat
certiorari in 1948. ( Oyama v. California, 332 U.S. upon proof that the consideration for a
conveyance of realty was paid or agreed to
633 [68 S.Ct. 269, 92 L.Ed. 249]; Takahashi v.
be paid by an ineligible alien and that title
Fish Game Com., 334 U.S. 410 [68 S.Ct. 1138, 92
was taken in the name of a citizen or
L.Ed. 1478].) These and other recent decisions of
eligible alien.
the United States Supreme Court, which we shall
discuss later, state and apply concepts of rights Takahashi v. Fish Game Com., 334 U.S. 410 [68
under the Fourteenth Amendment that are at S.Ct. 1138, 92 L.Ed. 1478], gives further
variance with the opinions in the earlier cases. indication that the Porterfield decision is no longer
727 to be regarded as settled law. In *727 the Takahashi
The holding of the United States Supreme Court
case a California statute which denied commercial
in the Oyama case was that a presumption
fishing licenses to "aliens ineligible for
declared by section 9 of the alien land law6
citizenship" was invalidated on the ground that it
violated the rights of citizens who were children of
violated the equal protection clause and conflicted
ineligible aliens and discriminated against such
with federal immigration power when it prevented
citizens solely because of their parents' ancestry.
ineligible aliens from earning a living as
The court was also confronted with the claim that
fishermen. In answer to arguments relying by
the general provisions of the land law denied
analogy on Porterfield v. Webb and similar cases,
ineligible aliens the equal protection of the laws,
the court said: "Assuming the continued validity
and it is significant that the contention was not
of those cases, we think they could not in any
discussed by the majority opinion although it
event be controlling here." (334 U.S. at p. 422, 68
could easily have been disposed of by citation of
S.Ct. at p. 1144.) There was thus another
Porterfield v. Webb had there been no question in
intimation that the court might not regard those
the minds of the members of the court with respect
decisions as binding authority if the
to the correctness of that decision. In rejecting an
constitutionality of the alien land laws were again
argument that the presumption was necessary to
squarely presented for determination.
prevent evasion of the prohibition against
ownership of land by ineligible aliens, the court Our view that we are not precluded from re-
speaking through Chief Justice Vinson said, "This examining the question is reinforced by the recent
reasoning presupposes the validity of that case of Kenji Namba v. McCourt (1949), 185 Or.
prohibition, a premise which we deem it 579 [ 204 P.2d 569], where the Supreme Court of
unnecessary and therefore inappropriate to re- Oregon, in holding invalid the alien land law of
examine in this case. But assuming, for purposes that state, reviewed the opinions of the United
of argument only, that the basic prohibition is States Supreme Court and concluded that the
constitutional, it does not follow that there is no Porterfield and related cases had been disapproved
constitutional limit to the means which may be by Oyama v. California, 332 U.S. 633 [68 S.Ct.
used to enforce it." (332 U.S. at p. 646, 68 S.Ct. at 269, 92 L.Ed. 249], and Takahashi v. Fish Game
p. 275; see, also, footnote 27 to majority opinion.) Com., 334 U.S. 410 [68 S.Ct. 1138, 92 L.Ed.
Four justices concurred in the result on the broad 1478].
ground that the basic provisions of the alien land
It thus appears that the decisions of the United
law violate the Fourteenth Amendment, stating
States Supreme Court do not foreclose, but rather
that previous decisions upholding the statute
invite, further consideration of the constitutional
should be overruled.
issues which have been raised.
5
The leading case involving alien land legislation, prohibited class defined by the California act; and
Terrace v. Thompson, 263 U.S. 197 [44 S.Ct. 15, the failure of California to extend the prohibition
68 L.Ed. 255], upheld a Washington law to eligible aliens who failed to declare their intent
prohibiting landholding by any alien who had to become citizens could not be said to be
failed to file a declaration of intention to become arbitrary or unreasonable.
an American citizen. While that statute did not
The foregoing summary covers all the grounds
mention eligibility for naturalization, the court
upon which our alien land law has heretofore been
noted that a class composed of nondeclarant aliens
upheld by the United States Supreme Court. As
necessarily included all ineligible aliens, and it
we shall see, Porterfield v. Webb, 263 U.S. 225
concluded that discrimination between aliens on
[44 S.Ct. 21, 68 L.Ed. 278], has been greatly
the basis of ineligibility to citizenship did not
weakened by subsequent decisions, and it is
violate the equal protection clause. The following
settled that the authority of an older case may be
reasons were given in support of the decision: (1)
as effectively dissipated by a later trend of
"Two classes of aliens inevitably result from the
decision as by a statement expressly overruling it.
naturalization laws, — those who may and those
(See, for example, Olsen v. Nebraska, 313 U.S.
who may not become citizens. The rule
236, 244-246 [61 S.Ct. 862, 864-865, 85 L.Ed.
established by Congress on this subject, in and of
1305, 133 A.L.R. 1500].) Constitutional principles
itself, furnishes a reasonable basis for
declared in recent years are irreconcilable with the
classification in a state law withholding from
reasoning of the earlier cases and lead us to
aliens the privilege of land ownership . . ." (2) "It
conclude that the statute violates the equal
is obvious that one who is not a citizen and cannot
protection clause of the Fourteenth Amendment.
728 *728 become one lacks an interest in, and the
power to effectually work for the welfare of, the [8] There can be no question that the rights to
state, and, so lacking, the state may rightfully deny acquire, enjoy, own and dispose of property are
him the right to own and lease real estate within its "among the civil rights intended to be protected
boundaries." (3) "If one incapable of citizenship from discriminatory state action by the Fourteenth
may lease or own real estate, it is within the realm Amendment," and that the power of a state to
of possibility that every foot of land within the regulate the use and ownership of land must be
state might pass to the ownership or possession of exercised subject to the controls and limitations of
noncitizens." It was also said that the "quality and that amendment. ( Shelley v. Kraemer, 334 U.S. 1,
allegiance of those who own, occupy and use the 10 [68 S.Ct. 836, 841, 92 L.Ed. 1161, 3 A.L.R.2d
farm lands within its borders are matters of highest 729 441]; see Terrace v. *729 Thompson, supra, 263
importance and affect the safety and power of the U.S. 197, 218 [44 S.Ct. 15, 19, 68 L.Ed. 255].)
State itself." (263 U.S. at pp. 220-221, 44 S.Ct. at
The California act, in the absence of treaty,
p. 20.)
withholds all interests in real property from aliens
Porterfield v. Webb, 263 U.S. 225 [44 S.Ct. 21, 68 who are ineligible to citizenship under federal
L.Ed. 278], upholding the constitutionality of the naturalization laws, and the Nationality Code
California alien land law, was decided the same limits the right of naturalization to certain
day as Terrace v. Thompson and was held to be designated races or nationalities, excluding
controlled by that decision. The court, in a short Japanese and a few racial groups comparatively
opinion, reasoned as follows: The prohibited class small in numbers. (8 U.S.C.A. § 703.) [7b]
under the Washington law consisted of Congress, however, at least prior to 1924,7 saw fit
nondeclarant aliens; this necessarily included all to permit aliens who are ineligible for citizenship
aliens ineligible for citizenship, which was the to enter and reside in the United States despite the
6
fact that they could not become naturalized, and [59 S.Ct. 872, 83 L.Ed. 1281]; Smith v.
such aliens are entitled to the same protection as Allwright, 321 U.S. 649 [64 S.Ct. 757, 88
citizens from arbitrary discrimination. ( Yick Wo v. L.Ed. 987, 151 A.L.R. 1110].
Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed.

Subsequent to the Oyama case the Supreme Court
220]; Truax v. Raich, 239 U.S. 33 [36 S.Ct. 7, 60
condemned the enforcement by state courts of
L.Ed. 131].) Accordingly, the statute cannot be
covenants which restrict occupancy of real
sustained unless it can be shown that the public
property on the basis of race or color, and it
interest requires limitation of their rights to
expressly pointed out that statutes incorporating
acquire and enjoy interests in real property.
such restrictions would violate the Fourteenth
7 For all practical purposes, immigration of Amendment. ( Shelley v. Kraemer, 334 U.S. 1, 11
ineligible aliens was halted by the [68 S.Ct. 836, 841, 92 L.Ed. 1161, 3 A.L.R.2d
Exclusion Act of 1924. (8 U.S.C.A. § 441].) While the persons discriminated against in
213c.) the Shelley and Oyama cases were citizens, it is
clear, as we have seen, that the Fourteenth
By its terms the land law classifies persons on the
Amendment protects aliens as well as citizens
basis of eligibility to citzenship, but in fact it
from arbitrary discrimination. ( Yick Wo v.
classifies on the basis of race or nationality. This is
Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed.
a necessary consequence of the use of the express
220]; Truax v. Raich, 239 U.S. 33 [36 S.Ct. 7, 60
racial qualifications found in the federal code.
L.Ed. 131].)
Although Japanese are not singled out by name for
discriminatory treatment in the land law, the [9] As a general rule a legislative classification
reference therein to federal standards for will be sustained if it is reasonable and has a
naturalization which exclude Japanese operates substantial relation to a legitimate object, and the
automatically to bring about that result.8 This was existence of any reasonably conceivable state of
recognized in Oyama v. California, supra, 332 facts sufficient to uphold the legislation will be
U.S. 633, 640, 644 [68 S.Ct. 269, 272, 274, 92 presumed. ( Lelande v. Lowery, 26 Cal.2d 224,
L.Ed. 249], where Chief Justice Vinson, speaking 232 [ 157 P.2d 639, 175 A.L.R. 1109]; Sacramento
for a majority of the court, concluded that the alien M.U. Dist. v. Pacific Gas Elec. Co., 20 Cal.2d
land law as applied in that case discriminated 684, 693 [ 128 P.2d 529].) [10] Where, however,
against a Japanese-American citizen, and that the as here, the classification is on the basis of race, it
"only basis for this discrimination . . . was the fact is "immediately suspect" and will be subjected "to
that his father was Japanese and not American, the most rigid scrutiny." ( Korematsu v. United
Russian, Chinese, or English." It was on this States, 323 U.S. 214, 216 [65 S.Ct. 193, 194, 89
ground that the court invalidated a presumption L.Ed. 194].) In Perez v. Sharp, 32 Cal.2d 711, 719
contained in the California land law, stating that [ 198 P.2d 17], Justice Traynor pointed out that
"only the most exceptional circumstances can "Race restrictions must be viewed with great
excuse discrimination on that basis in the face of suspicion, for the Fourteenth Amendment 'was
730 the *730 equal protection clause." (332 U.S. at p. adopted to prevent state legislation designed to
646, 68 S.Ct. at p. 275.) discriminate on the basis of race or color' (
8 Compare legislative devices to deprive
Railway Mail Ass'n v. Corsi, 326 U.S. 88, 94 [65
S.Ct. 1483, 89 L.Ed. 2072]; Williams v.
Negroes of franchise without express
mention of race. See Guinn v. United
International Brotherhood of Boilermakers, 27
States, 238 U.S. 347 [35 S.Ct. 926, 59 Cal.2d 586, 590 [ 165 P.2d 903]) and expresses 'a
L.Ed. 1340]; Lane v. Wilson, 307 U.S. 268 definite national policy against discrimination
because of race or color.' ( James v. Marinship
7
Corp., 25 Cal.2d 721, 740 [ 155 P.2d 329, 160 the method of classification adopted in California.
A.L.R. 900].) Any state legislation discriminating Accordingly, it devolves upon us to examine with
against persons on the basis of race or color has to care the reasons which have heretofore been
overcome the strong presumption inherent in this advanced in support of alien land legislation.
constitutional policy." (See also Shelley v.
One of the most persistent arguments popularly
Kraemer, 334 U.S. 1, 23 [68 S.Ct. 836, 847, 92
advanced in support of the validity of the
L.Ed. 1161, 3 A.L.R.2d 441], for discussion of
restrictive provisions of the Alien Land Law is
purpose of Fourteenth Amendment with regard to
that the statute merely carries into effect a
race and color.)
legislative policy of Congress and that the
The clear import of the statements quoted above regulations established by federal law, as to who
731 from *731 the Korematsu, Oyama and Perez cases may and may not become citizens, in themselves
is that the presumption of validity is greatly furnish a reasonable basis for classification. This
narrowed in scope, if not entirely dispelled, view has the effect of evading every other legal
whenever it is shown, as here, that legislation attack on the statute, for it concedes that the state
actually discriminates against certain persons law is discriminatory and shifts the blame to the
because of their race or nationality. This view, federal immigration law which was enacted under
now established by the latest declarations of the the plenary power of Congress over immigration
United States Supreme Court, is irreconcilable and naturalization free from the inhibitions of the
with the approach previously taken by that court in 732 Fourteenth Amendment. The *732 argument also
the Porterfield case in determining whether there conveys the suggestion that the courts need not
was a reasonable relation between the purposes seriously concern themselves with this particular
sought to be accomplished, and the classification denial of fundamental rights, since Congress in
adopted, in the California Alien Land Law. due time may change its immigration policy so as
to render the alien land law a dead letter.
The opinion of Justice Butler in the Porterfield
case overlooked the fact that the classification The fallacy in the contention that the California
resulted in racial discrimination, and it did not statute merely carries a congressional policy into
consider the validity of the California law in the effect appears from a cursory examination of the
light of the present rule that restrictive measures two totally distinct types of legislation. Congress
which curtail the rights of a racial group must be has enacted a naturalization law, not a property
carefully scrutinized. As noted above, that law. Congress regulates admission to citizenship,
decision was based upon the authority and not ownership of property. Congress has neither
reasoning of Terrace v. Thompson, supra, 263 declared nor assumed that landowners ineligible to
U.S. 197 [44 S.Ct. 15, 68 L.Ed. 255], which citizenship are a danger to the state; our
involved a statute classifying aliens on the basis of Legislature has so declared or assumed. The
whether or not they had filed a declaration of purposes and factual assumptions of the alien land
intention to become citizens. The court there law all originate in our own legislation, without
rejected a contention that such classification direction or even suggestion from Congress. It
discriminated because of race or color by pointing may be noted in passing that only a small minority
out that under the terms of the statute all of states have such alien legislation, although the
nondeclarant aliens, of whatever race or color, same immigration regulations apply throughout
were prohibited from owning land. The statement the country. (See 5 Vernier, American Family
is obviously inapplicable to the California statute, Laws [1938], 304-346; McGovney, The Anti-
and the Porterfield case is entirely silent on the Japanese Land Laws, 35 Cal.L.Rev. at pp. 21-24.)
question whether race discrimination is implicit in
8
The view that federal naturalization classifications Nationality Code sets forth a number of conditions
are automatically proper for purposes of state in addition to racial qualifications; for example, a
legislation was specifically rejected in Takahashi person is ineligible to become a citizen who
v. Fish Game Com., 334 U.S. 410, 420 [68 S.Ct. cannot speak English, or does not believe in our
1138, 1143, 92 L.Ed. 1478]. It was there pointed form of government and in property rights, or has
out by Justice Black, speaking for a majority of been convicted of desertion from the armed forces
the court, that the power of Congress to put racial or evasion of the draft during war, or has not
groups in special classifications for purposes of resided in the United States for a prescribed time,
regulating immigration and naturalization is very or is not of good moral character. (See 8 U.S.C.A.
broad and wholly distinguishable from the power § 704 et seq.) It may be that some of these
of the state to discriminate between such groups in requirements for naturalization bear a reasonable
determining which of its residents shall have the relationship to the asserted purpose of singling out
right to acquire, enjoy, own, and dispose of a class of persons who are not loyal to this country
property. Accordingly, if a state wishes to borrow or interested in its welfare. Other requirements,
a federal system of grouping, it must justify the however, and particularly the provisions regarding
adopted classification in its new setting, and the race, obviously do not constitute an accurate or
state's use of the distinction must stand or fall on reasonable method for distinguishing between
its own merits. loyal and disloyal persons. [11] Likewise, even if
it be assumed that there might be some
The state asserts that the purpose of the alien land
justification for a statute denying rights in
law is to restrict the use and ownership of land to
property to aliens who can become citizens, but
persons who are loyal and have an interest in the
who have not displayed sufficient interest in this
welfare of the state. As we shall see later, this is
country to seek naturalization, there can be no
not the true objective of the legislation, but even if
justification for a classification which operates to
it were there is no reasonable relationship between
withhold property rights from some aliens, not
that asserted purpose and the classification on the
because of anything they have done or any beliefs
basis of eligibility to citizenship. Just as eligibility
they hold, but solely because they are Japanese
to citizenship does not automatically engender
and not French or Italian. The only
733 loyalty or *733 create an interest in the welfare of
disqualification urged against Sei Fujii is that of
the country, so ineligibility does not establish a
race, but it may be said of him as it was said of
lack of loyalty or the absence of interest in the
Kumezo Kawato, "Nothing in this record
welfare of the country. Nor does it follow that a
indicates, and we cannot assume, that he came to
person has no stake in the economic and social
America for any purpose different from that which
fortune of a state merely because the federal law
prompted millions of others to seek our shores —
denies him the right to naturalization. His
a chance to make his home and work in a free
American-born children are citizens, and, having
country, governed by just laws, which promise
made his home here, he has a natural interest,
734 equal protection *734 to all who abide by them." (
identical with that of an eligible alien, in the
Ex parte Kawato, 317 U.S. 69, 71 [63 S.Ct. 115,
strength and security of the country in which he
117, 87 L.Ed. 58].)
makes a living for his family and educates his
children. One of the grounds given for the decision in
Terrace v. Thompson, 263 U.S. 197, 220-221 [44
In determining the propriety of a classification on
S.Ct. 15, 20, 68 L.Ed. 255], was that it was within
the basis of ineligibility to citizenship,
the "realm of possibility" that all the real property
consideration must necessarily be given to the
in a state might pass to the ownership or
nature of the requirements for naturalization. The
9
possession of persons ineligible to citizenship in was not designed to bring about that result. The
the absence of restrictive legislation. Whatever California statute leaves in possession and control
justification there may have been for fear of this 735 *735 of land many eligible aliens who have never
sort in 1923, any basis for such apprehension is declared their intention to seek naturalization and
now entirely lacking. Changes in the who have been residents for so long a time
naturalization and immigration laws since the without becoming declarants that one may infer a
Terrace and Porterfield decisions, together with settled purpose on their part never to become
other factors, have reduced that possibility to the citizens.
vanishing point. (See concurring opinion of
In the foregoing discussion, we have assumed, as
Justice Murphy, in Oyama v. California, 332 U.S.
asserted by the attorney general, that the purpose
633, 667-669 [68 S.Ct. 269 at pp. 285-286, 92
of the alien land law is to limit the use and
L.Ed. 249].) When those cases were decided, only
ownership of land to those who are loyal to this
white persons and persons of African nativity and
country and have an interest in the welfare of this
descent were eligible to become citizens.
state. It is generally recognized, however, that the
(Naturalization Act of 1790; 18 Stats. 318 [1875].)
real purpose of the legislation was the elimination
At the time the present proceeding was begun, in
of competition by alien Japanese in farming
1949, the naturalization laws had been amended to
California land. The argument presented in favor
provide that the following may become citizens:
of adoption of the act in the 1920 voters pamphlet
"descendants of races indigenous to the western
stated that the statute's "primary purpose is to
hemisphere" (8 U.S.C.A. § 703; 54 Stats. 1140,
prohibit Orientals who cannot become American
ch. 876 [1940]); "any person not a citizen,
citizens from controlling our rich agricultural
regardless of age, who has served or hereafter
lands," that "Orientals, largely Japanese, are fast
serves honorably in the military or naval forces of
securing control of the richest irrigated lands in
the United States" (8 U.S.C.A. § 1001; 56 Stats.
the state," and that "control of these rich lands
182 [1942]); Chinese persons and persons of
means in time control of the products and control
Chinese descent (8 U.S.C.A. § 703; 57 Stats. 601
of the markets." A former attorney general of
[1943]); Filipinos and persons indigenous to India
California declared that the basis of the alien land
(8 U.S.C.A. § 703; 60 Stats. 416 [1946]). Thus, in
law legislation was "race undesirability" and that
1949, the California alien land law could operate
"It was the purpose of those who understood the
only against Japanese and a small number of
situation to prohibit the enjoyment or possession
residents of a few other races, such as Polynesians.
of, or dominion over, the agricultural lands of the
According to 1940 census figures, the alien
State by aliens ineligible to citizenship, — in a
Japanese population of California was 33,569.
practical way to prevent ruinous competition by
Immigration of persons ineligible to citizenship
the Oriental farmer against the American farmer."
was halted by the Exclusion Act of 1924 (43 Stats.
(See Ferguson, California Alien Land Law 35
161, 8 U.S.C.A. § 213c), hence Japanese aliens in
Cal.L.Rev. 61, 68; McGovney, Anti-Japanese
the state in 1949 were necessarily of mature years,
Land Laws 35 Cal.L. Rev. 7, 14, 49; State Board
and their number must have been materially less
of Control report, "California and the Oriental"
than in 1940 due to death, changes of residence,
[1920 ed.] pp. 8-9, 45, 49-52.) Shortly after the
deportation and other causes.
statute was enacted this court recognized that the
Moreover, if, as indicated in the Terrace case (263 legislation was directed at the Japanese and that its
U.S. at pp. 217-221, 44 S.Ct. at pp. 18-20), a state purpose was to discourage them from coming into
may properly bar all noncitizens from owning this state. ( Estate of Yano, 188 Cal. 645 [ 206 P.
land, the method of classification here involved 995].) Moreover, the state has enforced the law
10
solely against persons ineligible to citizenship 737 *737 occupations," such as commercial fishing, in
because of race and primarily against Japanese. what way does the identical type of discrimination
(See statistics collected in concurring opinion by become valid where the work involves, as an
Justice Murphy in Oyama v. California, 332 U.S. incident, the ownership or possession of real
633, 661-662 [68 S.Ct. 269, 283, 92 L.Ed. 249]; property?
Ferguson, California Alien Land Law 35 9 See McGovney, Anti-Japanese Land Laws
Cal.L.Rev. at pp. 61, 73.) Although the prevention
[1947], 35 Cal.L.Rev. 7, 18-20, 39-41.
of agricultural competition between residents of
At early common law an alien could
the state might be a proper legislative objective
acquire real property by gift, purchase or
under some circumstances, arbitrary or devise, but his rights in the property were
736 unreasonable means *736 may not be used to subject to forfeiture by the crown. The
accomplish that result, and discrimination on the historical basis for this disability has been
basis of race, whether by the terms of a statute or traced to fear that the safety of the English
the manner of its administration, is obviously crown was threatened by the large number
contrary to the Fourteenth Amendment. of Normans and Frenchmen owning
English land in the thirteenth century. (See
It is well established that all aliens lawfully in this Pollack and Maitland, History of English
country have a right "to work for a living in the Law [2d ed., 1898] 463; 9 Holdsworth,
common occupations of the community." ( Truax History of English Law [1926] 92-93.)
v. Raich, 239 U.S. 33 [36 S.Ct. 7, 60 L.Ed. 131]; Early commentators offered such
Takahashi v. Fish Game Com., 334 U.S. 410 [68 explanations for the rule as the fact that
S.Ct. 1138, 92 L.Ed. 1478].) Much emphasis has aliens, owing a foreign allegiance, were
been placed in argument on an asserted distinction regarded as incapable of performing
between the right to engage in common callings military service for the king, one of the
and the right to own or use real property, but an most important incidents of the feudal
examination of the authorities shows that the tenure system. (See 2 Blackstone Comm.
250; State v. Boston, C. M.R.R. Co., 25 Vt.
distinction had its roots and justification solely in
433, 438.) Further, in time of war aliens
the ancient common law system of feudal tenure,9
"might fortify themselves in the heart of
and it has no rational basis today. As pointed out
the realm" and, in time of peace, so much
above, the United States Supreme Court, in of the freehold land might be held by aliens
Takahashi v. Fish Game Com., 334 U.S. 410 [68 that there would not be enough English
S.Ct. 1138, 92 L.Ed. 1478], held that a California freeholders to man the juries and hence
code provision denying commercial fishing "there should follow a failure of justice."
licenses to persons "ineligible to citizenship" (Calvin's Case [1609] 77 Eng.Rep. 377.)
violated the equal protection clause and conflicted France and England abolished
with the federal power to regulate immigration. It discrimination against aliens with regard to
was assumed for the purposes of the Takahashi property rights in 1819 and 1870,
decision that one objective of the licensing law respectively.
was "to protect California citizens engaged in

The truth is that the right to earn a living in many
commercial fishing from competition with
occupations is inseparably connected with the use
Japanese aliens." The opinion necessarily
and enjoyment of land. Farming, for example, is
determined that such a purpose did not justify
one of the most ancient and common ways of
discrimination against persons ineligible to
making a living, but the rule of the Porterfield case
citizenship. If there is no constitutional basis for
permits a state, in the absence of treaty, to so
such discrimination in regard to work in "ordinary
restrict an ineligible alien resident that he can farm
11
land only in the capacity of an employee or hired examination discloses no circumstances justifying
hand. (See Webb v. O'Brien, 263 U.S. 313 [44 classification on that basis. There is nothing to
S.Ct. 112, 68 L.Ed. 318]; Frick v. Webb, 263 U.S. indicate that those alien residents who are racially
326 [44 S.Ct. 115, 68 L.Ed. 323].) Moreover, ineligible for citizenship possess characteristics
under the Porterfield rule, ineligible aliens who are which are dangerous to the legitimate interests of
not protected by treaty may be restricted in the state, or that they, as a class, might use the land
following many ordinary occupations other than for purposes injurious to public morals, safety or
farming, since it is reasonably necessary to the welfare. Accordingly, we hold that the alien land
operation of most private businesses to own or law is invalid as in violation of the Fourteenth
lease land upon which an office, shop or factory Amendment.
may be located.10 Legislation which results in such
The judgment is reversed.
discrimination imposes upon the ineligible alien
an economic status inferior to that of all other Edmonds, J., and Traynor, J., concurred.
persons living in the state and interferes with his
right to earn a living. (See Kenji Namba v. CARTER, J.
McCourt, 185 Or. 579 [ 204 P.2d 569, 583];
I concur in the judgment of reversal.
concurring opinion, Palermo v. Stockton Theatres,
Inc., 32 Cal.2d 53, 66-67 [ 195 P.2d 1].) As the The sole justification of the statute barring
Supreme Court of Oregon recently said, in Japanese aliens from owning or occupying
declaring invalid an alien land law substantially property in California is that such persons will not
the same as the California statute, "Our country be legal citizens familiar with American concepts
cannot afford to create, by legislation or judicial and will use the property to the detriment, rather
construction, a ghetto for our ineligible aliens. than the welfare, of the nation. Authority for that
And yet if we deny to the alien who is lawfully conclusion is a similar statement made by Mr.
here the normal means whereby he earns his Justice Butler in Terrace v. Thompson, 263 U.S.
livelihood, we thereby assign him to a lowered 197 [44 S.Ct. 15, 68 L.Ed. 255], in 1923, who, in
standard of living." ( Kenji Namba v. McCourt, turn, took it from the decision of the judge in the
supra, 204 P.2d at p. 583.) lower court. There was not then, much less now,
10 When the alien land law was enacted a any basis for it. Regardless of what may have been
treaty permitted alien Japanese to lease the popular concept when our present
commercial and residential property. This immigration, naturalization and alien land laws
treaty was subsequently abrogated, but the were adopted and upheld by our courts, the trend
statute was construed as having of thought influenced by subsequent events is
incorporated the treaty provisions and as diametrically opposed to the philosophy
permitting such leases. ( Palermo v. underlying those laws and the decisions upholding
Stockton Theatres, Inc., 32 Cal.2d 53 [ 195 them. The basic fallacy of the argument advanced
P.2d 1].) in support of the validity of the alien land laws is
in making ineligibility for citizenship the postulate
In the light of the foregoing discussion, we have
of the classification of persons who are prohibited
concluded that the constitutional theories upon
from owning land.
which the Porterfield case was based are today
without support and must be abandoned. [7c] The Mr. Justice Schauer, in his dissenting opinion,
California Alien Land Law is obviously designed charges the majority of this court with refusal to
and administered as an instrument for effectuating perform its judicial duty by the rendition of its
738 *738 racial discrimination, and the most searching decision declaring the California Alien Land Law
12
unconstitutional. Our decision, he says, stems Schauer: "Justice is pictured as being blind but not
"from the strong social views of the justices who in the posture of an ostrich, and judicial duty is not
write it and from their desire to make the law what performed when a court refuses to follow a law
they think it should be," and is based on the because it conjectures that a higher court which
conjecture that the Supreme Court of the United has previously upheld the law may eventually
States "which has previously upheld the law may reverse itself." Contrary to this expressed belief of
eventually reverse itself." Mr. Justice Schauer, it is my view that the judge
who closes his mind and refuses to apply
For my part in participating in the decision, I deny
constitutional principles in the light of present day
the charge. I have always considered that the
concepts confuses the ostrich which hides his head
739 decisions upholding *739 the alien land laws were
when danger approaches with the mythical
based upon a false premise and that those laws
Goddess of Justice whose blindfold is depicted to
were never valid because they contravened
illustrate her impartiality and freedom from
constitutional mandates. I did not join with the
external influences.
majority of this court in People v. Oyama, 29
Cal.2d 164 [ 173 P.2d 794], which was reversed My philosophy of the law is and always has been
by the Supreme Court of the United States (see that it is the duty of a judge, in construing the
Oyama v. California, 332 U.S. 633 [68 S.Ct. 269, Constitution, to give effect to its provisions and
92 L.Ed. 249]), and I dissented in Takahashi v. strike down legislation in contravention thereof. (
Fish Game Com., 30 Cal.2d 719 [ 185 P.2d 805], Werner v. Southern Calif. etc. Newspapers, 35
which was likewise reversed by the Supreme Cal.2d 121, 137 [ 216 P.2d 825, 13 A.L.R.2d 252];
Court of the United States (see Takahashi v. Fish 740 Perez v. *740 Sharp, 32 Cal.2d 711, 732 [ 198 P.2d
Game Com., 334 U.S. 410 [68 S.Ct. 1138, 92 17]; In re Blaney, 30 Cal.2d 643 [ 184 P.2d 892];
L.Ed. 1478]). I took the position when those cases Rescue Army v. Municipal Court, 28 Cal.2d 460 [
were before this court that the statutes there 171 P.2d 8]; Gospel Army v. City of Los Angeles,
involved violated constitutional mandates and 27 Cal.2d 232 [ 163 P.2d 704]; County of Los
should be stricken down. I took this position Angeles v. Southern Calif. Tel. Co., 32 Cal.2d 378,
without regard to the conclusion which might 393 [ 196 P.2d 773]; Palermo v. Stockton
finally be reached by the Supreme Court of the Theatres, Inc., 32 Cal.2d 53, 66 [ 195 P.2d 1];
United States. While the majority of the Supreme Takahashi v. Fish Game Com., 30 Cal.2d 719, 737
Court of California upheld the statutes involved in [ 185 P.2d 805]; Hollman v. Warren, 32 Cal.2d
those cases, its decisions were reversed by the 351 [ 196 P.2d 562]; Lockard v. City of Los
Supreme Court of the United States. I can see no Angeles, 33 Cal.2d 453, 468 [ 202 P.2d 38, 7
distinction in the disposition of those cases by this A.L.R.2d 990]; Sandstrom v. California Horse
court and the case at bar. In my opinion this court Racing Board, 31 Cal.2d 401, 415 [ 189 P.2d 17, 3
has the right to say at this time that the statute here A.L.R.2d 90]; Del Mar Canning Co. v. Payne, 29
involved is unconstitutional even though the Cal.2d 380, 384 [ 175 P.2d 231]; Ferrante v. Fish
former decisions of the Supreme Court of the Game Com., 29 Cal.2d 365, 375 [ 175 P.2d 222].)
United States appear to have upheld it as
The Constitution of the United States is the
constitutional. What conclusion that court may
supreme law of the land and all judges take an
ultimately reach in this particular case cannot
oath to support it. In my opinion this oath is
change my view with respect to what the decision
violated when courts permit laws to stand or acts
of this court should be. I am fully cognizant that
to be done in conflict with its provisions. See
this position may be in conflict with the following
People v. Rochin, 101 Cal.App.2d 140, 143 [ 225
declaration in the dissenting opinion of Mr. Justice
13
P.2d 1, 913], reversed by the Supreme Court of the stranger sojourn with thee in your land, ye shall
United States ( Rochin v. California, 341 U.S. 939 not vex him. But the stranger that dwelleth with
[71 S.Ct. 997, 95 L.Ed. 1366]). you shall be unto you as one born among you, and
thou shalt love him as thyself." (Leviticus 19:33,
Convinced as I am and always have been that this
34.) And recently this admonition has been
statute violates basic constitutional guarantees, it
fostered by the United Nations Charter as an
is my plain duty to so declare. Even conceding
international policy. Any curtailment of equality
that the Supreme Court of the United States has
must necessarily, therefore, be carefully
not overruled Porterfield v. Webb, 263 U.S. 225
scrutinized.
[44 S.Ct. 21, 68 L.Ed. 278], Webb v. O'Brien, 263
U.S. 313 [44 S.Ct. 112, 68 L.Ed. 318], Frick v. After Pearl Harbor, one of the chief arguments
Webb, 263 U.S. 326 [44 S.Ct. 115, 68 L.Ed. 323], advanced for the evacuation from California of the
Terrace v. Thompson, 263 U.S. 197 [44 S.Ct. 15, Japanese was, as has been expressed: "Economic
68 L.Ed. 255], or Cockrill v. California, 268 U.S. practices made Japanese undesirable competitors,
258 [45 S.Ct. 490, 69 L.Ed. 944], it has reversed and their productive contribution to the nation's
this court on the only recent cases which have economy was negligible." (Grodzins, Americans
considered the problem here involved. Betrayed, p. 401.) If the impact of the Japanese on
Furthermore, that court has recently declared in agriculture shortly after 1941 was "negligible" —
Oyama v. California, 332 U.S. 633, at page 646 of no importance — then it cannot be said to be
[68 S.Ct. 269, 92 L.Ed. 249]: "There remains the now so important as to justify depriving them of
question of whether discrimination between their constitutional rights. Indeed, even less
citizens on the basis of their racial descent, as importance now exists, for they were placed in
revealed in this case, is justifiable. Here we start detention camps and since their release have been
with the proposition that only the most exceptional widely dispersed.
circumstances can excuse discrimination on that
In March, 1951, hearings were conducted by
basis in the face of the equal protection clause and
Subcommittees of the House and the Senate
a federal statute giving all citizens the right to own
Judiciary Committees on measures revising the
land. In Hirabayashi v. United States, this Court
laws on immigration, naturalization and
sustained a war measure which involved
nationality. One of the basic features of the
restrictions against citizens of Japanese descent.
proposed revision was the elimination of
But the Court recognized that, as a general rule,
discrimination on the basis of race for both entry
'Distinctions between citizens solely because of
of aliens into the country and their eligibility for
741 their *741 ancestry are by their very nature odious
naturalization. Many people representing various
to a free people whose institutions are founded
organizations testified at the hearings. Some of
upon the doctrine of equality.' 320 U.S. 81, 100
those organizations have heretofore actively
[63 S.Ct. 1375, 87 L.Ed. 1774] (1943)." The
participated in sponsoring and fostering the Alien
foregoing declaration is clearly out of harmony
Land Law of California. Yet no one opposed the
with the basic philosophy announced in the
departure from race as a basis for denying
decisions of that court hereinabove cited
citizenship, and most of them expressly endorsed
upholding the alien land laws.
it. Although not representing any organization,
The fundamental principle enunciated by the equal Congressman Judd's statement is typical. He said:
protection clauses of our Constitutions, both state "To me, this [the elimination of the racial
and federal, means equality for aliens within our discrimination] is a matter of simple justice. These
country, as well as for citizens. It has both people are here. They are legally here. They are
antiquity and sanctity for its background. "And if a 742 entitled to stay *742 here the rest of their lives.
14
Their average age is above 50. They pay taxes; California.' Through sheer perseverance they
they are good, law-abiding members of their gained control of the berry, potato, flower, and
communities. They have proved through their truck-garden markets. Organized labor and the
conduct during the war, and especially through the corrupt politicians, having put the Chinese 'in their
conduct of their children who served with place,' turned their attention to the Japanese, who
heroism, distinction, and valor in our Armed became the scapegoat for every misfortune. The
Forces, that they are loyal to the United States and anti-Japanese agitation, it has been said, was
fully worthy of American citizenship. From the predominantly motivated by economic factors;
standpoint of our own society, it would be better to though it has been suggested that the fear of racial
have them fully incorporated as citizens than as intermarriage was not absent.
alien residents.
"'Man for man, the Japanese immigrants compared
"Certainly it is better to have them a part of our 743 very *743 favorably with the European immigrants
country than a foreign body in it. I cannot believe of this period,' Treat has observed. 'They were
there can be substantial objection to allowing them generally literate, almost always law-abiding,
to become naturalized citizens, as they want to. . . industrious, and ambitious to rise in the world.'
. The Chinese were hated because they were
'servile'; the Japanese were hated because they
"I think that, both from the standpoint of our own
were industrious and ambitious. The Chinese were
conscience and from the standpoint of the respect
hated because they lived in urban ghettos and
we want the rest of the world to have for us, this is
worked in cities rather than on farms; the Japanese
an injustice which should be corrected. It is
were hated because they preferred agriculture and
merely good sense to naturalize those of that
worked on farms.
group who want to become full-fledged American
citizens, as almost every one of them does. That is, "As early as 1907 attempts were made in the
everyone, so far as I know." (Joint Hearings before California legislature to pass bills to drive the
the Subcommittees of the Judiciary, Congress of Japanese from the land (and ultimately from
the United States, 82nd Congress, March 6-April California). Owing to the efforts of President
9, 1951, p. 31.) Theodore Roosevelt the bills did not then pass.
The animus of the persons behind this anti-
It is clear, therefore, that there is not now and
Japanese drive in the state legislature is well
never has been any rational basis for excluding the
illustrated by the following passage from an
Japanese from land ownership. Even in the field of
address by one of them: 'I would rather,' he told an
naturalization and immigration, where Congress
audience, 'every foot of California was in its
may act without constitutional restriction, reason
native wilderness than to be cursed by the foot of
appears to prevail over prejudice. Since there is no
these yellow invaders, who are a curse to the
logical reason for excluding aliens from
country, a menace to our institutions, and
naturalization on the basis of race, there is even
destructive of every principle of Americanism. I
less reason to exclude them from land ownership
want no aliens, white, red, black or yellow to own
when they legally reside here.
a foot of land in the State of California.' . . .
Milton R. Konvitz, Associate Professor, Cornell
"The facts show that there is no relationship
University, had this to say in 1946: "The Japanese
between the character of the Japanese in the
were pioneers who reclaimed the San Joaquin
United States and the prohibition on ownership of
Valley from the desert. They turned this land 'from
land by them, in so far as concerns the public
its unhealthy barren state of wasteland into the
health, morals, or welfare. The record of the
richest and most productive district in the state of
15
Japanese in California is today an open book, and social study, both in general, and with specific
anyone who wants may read it. The record shows reference to the position of Japanese groups on the
them to have been a law-abiding group, loyal to West Coast. The most important driving urge of
American political institutions, industrious, such minority groups is to conform, not to rebel.
economically self dependent. They have not used This is true even for the American minorities
the soil of California to plant in it mines to blow which are partially isolated from the rest of society
California to the heavens; they used it for the by the bar of color. The desire to conform is
cultivation of vegetables and berries which were stronger than resentments and counter-reactions to
the delight of the consumer. They offered prejudice and discrimination. Insecure and
economic competition to members of the white conscious of the environment as a threat, such
race; but can the law be used to compel a racial minorities seek to establish their status by proving
group to give up its habits of industry and skills, themselves to be good Americans." (54 Yale L.J.,
and fundamental human rights, and assume a 489, 506.)
position of economic and social dependence?
The late Dudley O. McGovney, Professor of Law,
"The Supreme Court has said that the University of California, made a searching
differentiation between aliens eligible for analysis of the entire problem in 1947, and said:
citizenship and ineligible aliens is a rational one, "In what respect does the ownership of some of
for the ineligibles cannot be assumed to have a the farm lands in a state by persons who owe no
great interest in the welfare of the people. The allegiance to the United States affect the safety of
facts concerning the Japanese and Chinese and a state, either in time of peace or of war? Has this
other Asiatics in this country do not bear out this ancient idea by which early English law writers
judgment of the court. These people have never rationalized the exclusion of all but the King's
744 hindered the development of our national *744 subjects from certain feudal land tenures any
policy in the furtherance of the public welfare; validity in our time? Tenure by knight service, or
they have built railroads for us; they have made military tenure, was then conceived of as
berries grow where thistles grew before; they have something that none but persons under allegiance
contributed less than their 'quota' to our prison to the King might owe. But 'by the end of the
population. Despite economic handicaps, and thirteenth century, tenure by knight service had
placement in positions of social inferiority, they ceased to provide either soldiers or their pay.'
have managed to shift for themselves without Maitland says that if it had been abolished in 1300
leaning on others. How, then, can it be said that the military strength of the realm would have been
their ineligibility for citizenship is a rational unaffected. When the statute of 1660 completely
justification for depriving them of fundamental abolished military tenure it was merely clearing
human rights?" (Konvitz, The Alien and the away what had long been a dead letter so far as
Asiatic in American Law, pp. 157, 168.) 745 military *745 service was concerned. A connection
between tenure and military service had existed
Eugene V. Rostow, Professor of Law, Yale
only in theory when Coke saw 'destruction of the
University, with comprehensive citations of
realm' in landholding by aliens. In our time
scientific authority has this to say: ". . . the
liability to military service is not dependent upon
Supreme Court's doctrine of ethnic disloyalty
allegiance. Resident aliens are now subjected to
belongs with folk proverbs — 'blood is thicker
compulsory military service even in international
than water' — and the pseudo-genetics of the
warfare, and nothing but legislative policy
Nazis. It is flatly contradicted by the evidence of
exempts enemy aliens. An alien is not exempt
the biological sciences, of cultural anthropology,
from draft because he owns farm land. So also
sociology, and every other branch of systematic
16
Coke's Trojan-horse idea, that aliens owning land quiet resident or non-resident alien, in time of
'might fortify themselves in the heart of the realm,' 746 profound peace, *746 where no danger was
never had any validity in the United States, apparent, imminent, or even remotely threatened.'
certainly not since 1798. Congress then passed a
"If the allegiance of farm owners is of 'highest
statute, ever since in force, authorizing the arrest,
importance' and the alienage of farm owners
confinement, or removal of enemy aliens in
affects the safety of the state, the legislators of
wartime. It also authorized the President 'to direct
forty-one of our states are lacking in statecraft, for
the conduct to be observed, on the part of the
by their laws the allegiance of those who own
United States, toward' enemy aliens. During the
farm lands is regarded as of no significance
war of 1812 with Great Britain, orders by the
whatever. Rightly included in the forty-one states
President and other officials acting under his
are the nine 'ineligible alien' land law states for
authority directed all British nationals, fourteen
they also regard the allegiance of landowners of
years of age and over, residing within forty miles
no significance except in case of the small
of tidewater to surrender to United States marshals
numbers of aliens racially ineligible to
and be retired further into the interior of the
naturalization. So California lawmakers see no
country or to be kept in close confinement. . . .
reason for denying to a half million alien residents
"The fact that an enemy alien owns farm lands in the privilege of owning land without limit, though
nowise affects his liability to evacuation. Indeed denying that privilege to less than thirty thousand
the ownership of any property by an enemy alien other alien residents because of their race.
in the United States is an asset to us, rather than a
". . . Even if the allegiance of farmers had
liability or a handicap, in view of the authority
significance why is it of significance with respect
given the Alien Property Custodian to seize it,
to the less than thirty thousand 'ineligible aliens' in
hold it, sell it or otherwise deal with it in the
California but of no significance with respect to a
interest, and for the benefit, of the United States.
half million other aliens in California who may
"Coke's Trojan-horse now lives only in law books never seek or acquire citizenship? Moreover, the
or in the minds of persons who unthinkingly statement smacks of Coke's exaggeration when he
accept antiquated 'reasons' for the ancient said that if aliens could hold land in England, there
discrimination that the common law made against would not be enough British freeholders to man
aliens with respect to landholding. the juries. If all the 'ineligible aliens' in California
were to exhaust themselves in share cropping,
"Turning to peacetime, how does alien
there would be millions of acres of farm lands left
landholding then affect the safety of the state? I
for the citizens and other aliens. The same
think the complete answer was given to that
exaggeration is found in a statement with which
question by Chief Justice Redfield of Vermont in
Justice Butler said he agreed: 'If one incapable of
1853. The question before the Vermont supreme
citizenship may lease or own real estate, it is
court was whether the common law against
within the realm of possibility that every foot of
landholding by aliens had been received, or had
land within the state might pass to the ownership
survived, in the state, and in particular whether
or possession of noncitizens.' Even if that were a
Vermont law contained any procedure for the
possibility the evil inherent therein is not
forfeiture of estates of aliens. The court held 'no,'
specified. . . .
the Chief Justice saying, 'it must, I think, be
regarded as questionable how far any such "If some evil condition in farming existed in any
procedure could ever be enforced, for the mere state, the state might set up a licensing system for
purpose of escheating to the State the lands of a farmers and prescribe qualifications deemed
17
essential to overcome the evil, and the Supreme production). It was the Japanese who took over the
Court would doubtless pay deference to the local semi-abandoned community of Livingston and
judgment on the rationality of the discrimination made it a profitable farming area, and who
made thereby. Thus if tillable land were scarce in succeeded in the mountain-fruit section in Placer
California relative to the food needs of her County after other groups had failed. 'In the
population, the state might prescribe qualifications Imperial Valley and the Delta country,' observed
for farming that would exclude all not well Robert Welles Ritchie, 'the Japanese never
qualified as productive operators. If such was the displaced white men, for white men would not
purpose of the California law it fits ill with the fact work there; and in the mountain fruit district, the
that the chief charge against 'ineligible aliens,' and Chinese and after them the Japanese came in, after
the Japanese in particular, was that they were nearly every white man had quit, and made a go of
especially skillful and unduly industrious — a crippled industry.' In later years the Californians
747 particularly *747 in intensive cultivation, involving contended that the Japanese were monopolizing
hard personal labor. It would take a high degree of the best lands; but candor should have compelled
judicial deference to local judgment to believe that the admission that most of these lands were
Japanese were the worst offenders in originally marginal in character.
nonproductivity." (Italics added.) (35 Cal.L.Rev. 7,
". . . Their most important contribution to the
39.)
economy of the West, however, was the manner in
Further, it has been said: "They [the Japanese] which they organized produce production on a
possessed a remarkable knowledge of soils and of year-round basis so as to provide a steady flow of
how to treat soils for the production of certain produce to the markets." (McWilliams, Prejudice,
crops; an expert knowledge of the use of fertilizers 748 p. 79.) *748
and of fertilizing methods; a great skill in land
In a recent article by Mr. Blake Clark published in
reclamation, irrigation, and drainage; and a
The Freeman on July 16, 1951, he states: "Mrs.
willingness to put in the enormous amount of
Nawa Munemori is the mother of an American
labor required in intensive farming operations.
World War II hero. A grateful nation bestowed the
They pioneered in the production of many crops.
Congressional Medal of Honor on her son Sadao
They reclaimed vast areas of the West, including
for wiping out two machine-gun nests and
the cut-over timber lands of the Northwest and the
throwing himself on an exploding hand grenade to
valuable delta lands in California. . . . the San
save his fellow soldiers. The United States Army
Francisco Chronicle readily conceded that 'the
transport, Pvt. Sadao Munemori, which brought
most striking feature of Japanese farming in
his regiment home from Europe, bears his name
California has been the development of successful
today. Yet Mrs. Munemori, his widowed mother, is
orchards, vineyards, or gardens on land that was
denied citizenship by the country for which her
either completely out of use or employed for far
son sacrificed his life.
less profitable enterprises.'
"Mrs. Munemori symbolizes the plight of victims
"It was George Shima, an immigrant, who taught
of our outmoded immigration and naturalization
the Californians how to develop a good potato
laws, which discriminate against worthy people
seed. It was Japanese farmers who developed
purely on the basis of their race. These antiquated
berry production in the West by increasing the
statutes give the Communists in the Far East a
yield four or five times over what it had been
powerful anti-American propaganda weapon, and
(planting strawberries and grapevines at the same
damage our relations with the people of Asia.
time so that when the strawberries were replanted
three years later a profitable vineyard would be in
18
"The situation of some 85,000 aliens in this 442nd Regimental Combat Team, which probably
country demonstrates the unfairness of the received more decorations and suffered more
position we have taken. About 80,000 are casualties than any unit of similar size in the entire
Japanese; 5000 are Koreans and Polynesians, with U.S. Army. Yet these parents cannot become
a sprinkling of other nationalities. These residents citizens.
legally entered this country before 1924. The
"The abuses against those of Japanese origin are
Immigration Act of that year permitted them to
compounded in California, where many of them
remain here but continued to deny them the rights
live. There state laws forbids an alien ineligible
of naturalization that were granted to European
for citizenship from owning a farm. Men who
immigrants. The sole consideration affecting our
have turned acres of desert waste into green,
treatment of these long-time settlers is their race.
producing fields can cultivate the land only as
"Sir Peter Buck, for example, a former professor hired hands.
of anthropology at Yale University, is one of the
"The California law makes it a crime for a
world's outstanding scientists in his field. England
Japanese alien to 'enjoy, use, occupy, be or remain
was proud to knight him, but he is refused the
on the land, or have a beneficial interest in the
privilege of U.S. citizenship. Sir Peter is the son of
land, its crops or proceeds.' Temporarily in
an Irish father and a Maori mother. The fact that
abeyance pending court decision on a case, this
he is half-Maori — and that alone — bars Sir
prejudiced law has been so strictly enforced in
Peter from citizenship in his beloved adopted
some counties that families cannot live together.
country.
California filed a suit to seize the property of Mrs.
"Before his recent appointment as Korean Roy K. Hirata, born an American citizen and
Ambassador to the United States, Dr. Y.C. Yang mother of three citizen children, because her alien
was a prominent Honolulu physician, and had husband had helped her cultivate her farm and
practiced in this American community for half a lived on it. Hirata had to leave home and watch
lifetime. He was educated in the United States, is hired strangers gather the crops he had planted.
married to an American, and is the father of an
"Akira Iwamura was eager to get home after two
American daughter. Dr. Yang would have
years with Army Intelligence in the Pacific. His
welcomed American citizenship long ago had it
father had bought 60 acres of good Fresno grape
been possible.
land in his citizen son's name in 1938, and had
"When Pearl Harbor was attacked, Dr. Yang been taking care of it for him. California
responded immediately to an emergency appeal welcomed Akira home from war service with a
for medical volunteers to treat the wounded. He demand that he forfeit his land — because his
worked indefatigably to save the lives of many alien parent had a beneficial interest in it. Akira's
749 American seamen. He then volunteered in the *749 lawyer advised him to settle out of court. In
Hawaii National Guard. After being exchange for the state's 'quieting the title,' Akira
commissioned a captain and serving two weeks, had to pay half the assessed value of the land to
he was notified that his service could no longer be buy back his own acres.
accepted. As a Korean, he was classified as an
"California is not alone in making the racially
enemy alien. He could not serve his chosen
ineligible alien run a stiff obstacle course for his
country — because of his race.
livelihood. Nowhere from the Pacific to the
"The Japanese, the largest group affected, have Atlantic can he be a lawyer or certified public
probably contributed more to America than any accountant. Despite shortages in important
other Asiatics. Their sons formed the famous professions, 26 states prohibit his making a living
19
as a dentist; 25 as a physician; 18 as a teacher. official in Rangoon declared that the Burmese ask
750 Some 500 laws passed by various *750 states bar constantly if the status of our 'outcast law' has
him from such work as a real estate or insurance been changed.
agent, pharmacist or civil servant. In some states
"'The Communists,' said a Korean, 'accuse
he cannot even accept an old-age pension,
America of fighting a colonial war here. If you
although money toward it may have been withheld
extend us a quota, it will help show you mean it
from his wages!
when you say we deserve equal democratic rights.'
"The Immigration Act of 1924 was passed to In Japan the chief news over Radio Tokyo for days
prevent a horde of foreigners from flooding our dealt with the hearings in the House of
shores and depressing our wage scale. Legislators Representatives on a bill to abolish this racial
worked out an equitable system, as far as the clause.
nations of the Old World were concerned. It was
"Correcting these abuses would not result in a
agreed that America could readily assimilate
large flow of foreigners into the United States.
150,000 immigrants a year, about one sixth of one
Japan's annual quota would be a mere 185, most
percent of our population as reported in the 1920
751 of the other Asiatic areas would *751 have 100
census. A quota was assigned to each nation,
each. If every excluded group used a full quota
based on the number of residents each had
each year, their total would not equal one percent
contributed to our population.
of our 150,000 yearly immigrants. In actual
"But, with the exception of Persia and parts of practice, the number of arrivals would be even
Afghanistan and Russia, Oriental nations received fewer. Qualifications such as literacy, health and
no quota at all. Instead, they were described as ability to earn a living would keep the number of
constituting the 'Asiatic barred zone,' and were immigrants from some countries low. In all we
told to keep out. According to Joseph C. Grew, could expect each year less than a thousand
former Ambassador to Japan, it was perhaps the newcomers, a comparatively infinitesimal number.
worst mistake we ever made in our relations with
"Public-opinion polls show that the great majority
the Orient. This gross insult placed a potent
of Americans, including Californians, do not want
weapon in the hands of the Japanese militarists.
any person denied citizenship because of his race.
They used it to promote 'Asia for the Asiatics'
A bill to this effect, supported by church and civic
throughout the Far East.
groups and by our Departments of Justice and
"During the war the folly of asking aid from the State, has three times passed the House by
Chinese while barring them as racially inferior unanimous vote, only to be stopped in Senate
became so obvious that in 1943 we exempted committee. Representative Walter Judd, well-
them from the excluded groups. Later the bans known authority on the Far East and one of the
against India and the Philippines were lifted. It is bill's sponsors, is convinced that if it could be
time to wipe our record clean of the remaining brought to the floor for a vote the majority of
blots which mar our relations with potential Senators would agree with the majority of other
friends and allies. Americans.
"On a recent trip around the world I heard "Before the end of World War II, the United States
repercussions of this short-sighted race prejudice and Nazi Germany were the only two major
at every stop. In Bangkok a newspaperman said nations that used race as a test for naturalization.
that Communist editors in the Far East constantly Now, we alone maintain this discrimination. In
told their readers that we consider Orientals Asia we face a well-organized minority attempting
racially inferior and despise them. An American to unite the East against us. We can show the
20
people of the Orient we stand back of our national Shirey, Orville C. Americans: The Story of the
pledge of liberty and justice for all' by welcoming 442nd Combat Team. From activation to
worthy persons and providing them equality under occupation with the 442d Regimental Combat
our naturalization and immigration laws. From a Team. Infantry Journal Press;
purely selfish standpoint, wiping discrimination
U.S. Army. Western Defense Command and
off the books as well as out of our hearts would be
Fourth Army. Final report, Japanese evacuation
worth more to us in the Orient than a dozen army
from the West Coast. Washington, U.S. Govt.
divisions."
Print. Off., Pt. I through IX. Signed by Lt. Gen.
Numerous other publications and reports have J.L. DeWitt, U.S. army, commanding;
dealt with the impact of Japanese immigrants on
U.S. Bureau of Agricultural Economics. Japanese
the American way of life. I will refer to some of
farm holdings on the Pacific Coast, by Adoni Poli.
them:
Berkeley, Calif. Processed. Detailed tables; and
Brown, Francis J. and Roucek, Joseph S., eds. One
U.S. Congress. Select Tolan Committee
America. The history, contributions and present
Investigating National Defense Migration.
problems of our racial and national minorities.
Rev.ed. Prentice-Hall, 1945; These publications and reports, like those from
which I have quoted above, demonstrate the
Bloom, Leonard and Riemer, Ruth. Removal and
fallacy of the basic concept underlying the
Return. The socioeconomic effects of the war on
decisions holding that the race or nationality of a
Japanese Americans. University of California
person is a proper basis for the classification of
Press;
those who are ineligible to own land or other
Foote, Caleb. Outcast! The story of America's property. This concept is based upon a factual
treatment of her Japanese-American minority. background which was assumed at the time our
Fellowship of Reconciliation. 1944; present immigration, naturalization and alien land
laws were adopted and upheld by our courts, but
442d Combat Team. The Album. Camp Shelby,
which has since been shown to be without
752 Mississippi. *752
foundation. It would seem, therefore, that the
La Violette, Forrest E. Americans of Japanese maxim that "when the reason for the rule ceases,
Ancestry, a study of assimilation in the American the rule itself ceases," should be applicable here.
community. Toronto; The Canadian Institute of
I am, therefore, of the opinion that the race or
International Affairs. 1945;
nationality of a person is not a proper basis for a
Leighton, Alexander H. The Governing of Men. classification of aliens eligible to own land or
General principles and recommendations based on other property, and that the provisions of the
experience at a Japanese relocation camp. California Alien Land Law barring aliens
Princeton, N.J., Princeton University Press; ineligible to citizenship from owning land here are
in violation of the equal protection clauses of both
Redfield, Robert. The Japanese Americans. The
the Constitution of the United States and the
problems of divided loyalty; the evacuation. The
753 Constitution of California. *753
University of Chicago Press;
Smith, Bradford. People From Japan. The history SCHAUER, J., Dissenting and Concurring.
of the Japanese in America and Hawaii. J.B.
This case is remarkable and regrettable in judicial
Lippincott Co.;
annals for this reason: A majority of the justices of
this court join in an opinion which recognizes the
21
law as it is but refuses to follow it. for our debate or ruling. The people enacted it and,
as already noted, the only classification it makes is
There is no question as to what the law is. It was
created by an act of the Congress of the United
enacted in the year 1920 by the people of
States. By constitutional processes the people, if
California through the initiative (1 Deering's Gen.
they will, can amend or repeal it or the Congress
Laws, Act 261); it is based, as to the classification
can abolish the classification. But until and unless
established, on an act of the Congress of the
the people or the Congress act by the
United States1 for the past 32 years this law, as
754 constitutional *754 process, the law should not
will appear more fully in the cases hereinafter
unnecessarily be stricken down by judicial
cited and discussed, has been consistently upheld
intervention.
by this court and by the Supreme Court of the
United States as against the precise attack now That the justices who join in striking down this
made on it. But now, say the majority, upon an law find it obnoxious to their personal social
elaborate analysis of the trend of recent decisions views and to their concepts of desirable
of the Supreme Court of the United States, they international relations is quite understandable, and
think that that court, if the question were to be that they shall examine the law in the light of their
again presented to it might or would change its personal views and concepts is of course a part of
holding. The most careful study of the majority our judicial process. But our legitimate judicial
opinion discloses no other legal basis for their process likewise requires that we indulge every
holding than this conjecture. reasonable presumption in favor of the validity of
a law whether we like it or not; that, when
1 Naturalization Act of 1790, 18 Stats. 318
personal views and public law differ, we subjugate
(1875); 8 U.S.C.A. § 703, 54 Stat. 1140,
our personal social views and concepts to the law
ch. 876 (1940).
adopted by the people; and that we not strike
If this court may properly anticipate that the down as unconstitutional any law which,
United States Supreme Court may in the future consistently with constitutional precepts, can be
reverse its prior holdings and if we may act in sustained. That this law can be sustained is
reliance upon such anticipation, then what indubitably demonstrated by the plain fact that for
criticism can we in good grace offer if hereafter 32 years it has been sustained both by this court
parties litigant anticipate that our judgments may and the United States Supreme Court. As recently
be reversed by ourselves or stricken down by the as People v. Oyama (1946), 29 Cal.2d 164 [ 173
federal Supreme Court, and upon such anticipation P.2d 794] (opinion for the court by Mr. Justice
flaunt our judgments? Have we not today Edmonds), we upheld the validity of the act today
established a precedent for just such action? What held void. It is noteworthy and commendable that
labor union or employers' organization or little Mr. Justice Traynor therein concurring said (p.
man could consistently be denied the right to 181): "I concur in the judgment on the ground that
follow us in speculation and anticipation and to act the decisions of the United States Supreme Court
in reliance thereon? cited in the main opinion are controlling until such
time as they are reexamined and modified by that
The majority opinion, I think, is not motivated by
court." This concurrence by Justice Traynor
an effort to find the law, and to uphold it as found.
exemplifies conformance to the duty of a judge as
I think it stems more from the strong social views
it is usually understood and respected; it suggests
of the justices who write it and from their desire to
that the judicial duty is obnoxious to personal
make the law what they think it should be. But
desire but that respect for the law must and will
whether this law should be modified or repealed or
prevail. The decisions he refers to have been
continued in force is not, I think, a proper subject
22
reexamined but they have not been modified in the the people of California, rather than, if they were
controlling point by the court which rendered so minded, actively pursuing the obvious
them. The implicit and utter soundness of the legislative remedy.
principles of constitutional law upon which they
Of substituting the judicial process for the
rest, stand unweakened and untarnished — until
legislative, again in Werner v. Southern Calif. etc.
today. Compliance with the law and faithful
Newspapers (1950), supra (p. 129 of 35 Cal.2d),
discharge of judicial duty, in my view, furnish a
the majority of this court said: "It is for the
light which is as clear today as it was in 1946.
Legislature . . . to choose between conflicting
Certainly the law may progress. But change is not
policies, and this court may not presume that in
necessarily progress; it may be destruction rather
reaching its decision it acted upon improper
than growth.
motives . . . 'We cannot undertake a search for
Also recently this court (again speaking through motive in testing constitutionality . . .'
Mr. Justice Traynor for the majority) said, in
"This court cannot invoke the due process clause
Werner v. Southern Calif. etc. Newspapers (1950),
to invalidate a legislative policy that it may deem
35 Cal.2d 121, 131 [ 216 P.2d 825, 13 A.L.R.2d
unwise without exercising judicial censorship
252], quoting from County of Los Angeles v.
directed not at the constitutionality of legislation
Southern Calif. Tel. Co. (1948), 32 Cal.2d 378
but at its wisdom, a censorship whose dangers Mr.
755 *755 [ 196 P.2d 773], quoting in turn from People
Justice Holmes clearly envisaged: 'I have not yet
v. Western Fruit Growers (1943), 22 Cal.2d 494,
adequately expressed the more than anxiety that I
507 [ 140 P.2d 13]. "'"When a legislative
feel at the ever increasing scope given to the
classification is questioned, if any state of facts
Fourteenth Amendment in cutting down what I
reasonably can be conceived that would sustain it,
believe to be the constitutional rights of the States.
there is a presumption of existence of that state of
As the decisions now stand, I see hardly any limit
facts, and the burden of showing arbitrary action
but the sky to the invalidating of those rights if
rests upon the one who assails the classification."'"
they happen to strike a majority of this Court as
If that principle were followed here the Alien
for any reason undesirable. I cannot believe that
Land Law could not be stricken down. It has been
the Amendment was intended to give us carte
upheld by the Supreme Court of the United States;
blanche to embody our economic or moral beliefs
it still stands except as this court today refuses to
in its prohibitions.' ( Baldwin v. Missouri, 281
abide by it, refuses to uphold the will of the people
U.S. 586, 595 [50 S.Ct. 436, 74 L.Ed. 1056],
of California and concludes, contrary to the
756 dissent.) *756 This view has found increasing
announced decisions of the Supreme Court of the
acceptance by the United States Supreme Court.
United States, and to the many earlier
'This Court beginning at least as early as 1934
determinations of this court, that the law
when the Nebbia case was decided, has steadily
contravenes the federal Constitution. It is, indeed,
rejected the due process philosophy enunciated in
an unusual procedure when a state court holds
the Adair-Coppage line of cases. In doing so it has
unconstitutional on federal grounds a state act
consciously returned closer and closer to the
which the United States Supreme Court holds to
earlier constitutional principle that states have
be constitutional as against the same attack. In my
power to legislate against what are found to be
view, the only unconstitutional procedure apparent
injurious practices in their internal commercial
here is the act of the majority justices in using the
and business affairs, so long as their laws do not
judicial process to impose their social views on
run afoul of some specific federal constitutional
prohibition, or of some valid federal law.
[Citations.] Under this constitutional doctrine the
23
due process clause is no longer to be so broadly may belie prophecy in actual operation. It may not
construed that the Congress and state legislatures prove good, but it may prove innocuous. But even
are put in a strait jacket when they attempt to if a law is found wanting on trial, it is better that
suppress business and industrial conditions which its defects should be demonstrated and removed
they regard as offensive to the public welfare.' ( than that the law should be aborted by judicial fiat.
Lincoln Fed. L. Union v. Northwestern I. M. Co., Such an assertion of judicial power deflects
335 U.S. 525, 536-537 [69 S.Ct. 251, 93 L.Ed. responsibility from those on whom in a
212, 6 A.L.R.2d 473].) democratic society it ultimately rests — the
people.' (Mr. Justice Frankfurter concurring in
"'Despite evidence to the contrary, respondents see
A.F.L. v. American Sash D. Co., 335 U.S. 538, 553
no evil to be corrected by this legislation. We are
[69 S.Ct. 258, 93 L.Ed. 222, 6 A.L.R.2d 481].)"
asked to agree with respondents and call the
statute arbitrary and unreasonable. This case today is probably not of such
immediately grave importance to the citizens of
"'Looking through the form of this plea to its
California, and to the United states as a nation, as
essential basis, we cannot fail to recognize it as an
it would have been prior to the events of the
argument for invalidity because this Court
period between December 7, 1941, and August 14,
disagrees with the desirability of the legislation.
1945. The long-planned occupation and conquest
We rehearse the obvious when we say that our
of California by Japan has been at least for the
function is thus misconceived. We are not
foreseeable future averted. That nation, finally
equipped to decide desirability; and a court cannot
defeated at horrible cost to the United States and
eliminate measures which do not happen to suit its
to other freedom-loving peoples of the world, as
tastes if it seeks to maintain a democratic system.
well as to itself, is now building a new
The forum for the correction of ill-considered
government. It is to be hoped that this new
legislation is a responsive legislature.' ( Daniel v.
government may in time prove its right to, and
Family Secur. L. Ins. Co., 336 U.S. 220, 224 [69
thereupon be welcomed in, the family of nations
S.Ct. 550, 93 L.Ed. 632, 10 A.L.R.2d 945].)
as a champion of peace and good will and a
"The responsiveness of a legislature reflects the defender against aggressors, their stealth, their
alertness of the electorate, and legislation ill- devices, their cunning and their violence. It is
considered in a climate of indifference may indeed to be fervently hoped that the people of this
continue to flourish in such a climate to the late enemy nation, though perhaps unwillingly
dismay of interested citizens whose numbers may rescued from totalitarianism, may espouse the
be small. If these few then turn impatiently to the principles of democracy, and of forthrightness,
courts, however, abandoning the hard task of honesty, reason and gentleness for their own
dispelling the general lethargy, they accomplish government and in their dealings with all. But the
nothing to improve legislation, for if courts are validity of a law should be decided on facts as
called upon to set their judgment as to what is they existed at the time of its enactment, not on
wise against the popular judgment they may social theories or expectation for the future, or
summarily put an end to certain laws that may be speculation that the United States Supreme Court
foolish but also to certain laws that may be wise, may eventually change its ruling on a
757 and particularly to laws that may be *757 wise in constitutional issue. Justice is pictured as being
the long run although they appear foolish at the blind but not in the posture of an ostrich, and
moment. 'Most laws dealing with economic and judicial duty is not performed when a court refuses
social problems are matters of trial and error. That
which before trial appears to be demonstrably bad
24
to follow a law because it conjectures that a higher Regulation of the devolution and ownership of
court which has previously upheld the law may land within its borders has been traditionally
eventually reverse itself. considered an attribute of state sovereignty (
United States v. Fox (1876), 94 U.S. 315, 320 [24
Even if we forsake completely the doctrine of
L.Ed. 192]; Hauenstein v. Lynham (1879), 100
stare decisis and reexamine the statute in question
U.S. 483, 484 [25 L.Ed. 628]; Blythe v. Hinckley
in all its aspects, its validity is unquestionable on
(1901), 180 U.S. 333 [21 S.Ct. 390, 393-394, 45
any sound approach.
L.Ed. 557]). Plaintiff, however, contends that the
The question is whether one of the states of our Alien Land Law of this state violates the due
758 union may *758 properly place restrictions upon process and equal protection clauses of the
the rights in real property within its boundaries Fourteenth Amendment, invades the field of
which may be enjoyed by an alien resident whom federal power over immigration, and is
the Congress of the United States has not made inconsistent with the United Nations Charter. He
eligible to citizenship.2 also contends that the law is invalid special
legislation prohibited by the Constitution of this
2 Restrictions on the right of aliens to hold
state, and that it unlawfully delegates state
land are no innovation in the law. Since
legislative power to Congress.
1887 there has been a federal Alien Land
Law which, with certain exceptions, Constitutionality
prohibits aliens who have not declared
With regard to equal protection, plaintiff urges,
their intention to become citizens from
owning territorial land. (8 U.S.C.A. §§ 71-
first, that statutory classification of aliens on the
86.) Every state has made some provision basis of eligibility to citizenship is arbitrary
with regard to the rights of aliens to own insofar as discrimination against the ineligible
real property. (See 5 Vernier, American bears no reasonable relationship to promotion of
Family Laws (1938), 304-346; McGovney, the safety and welfare of the state. He argues that
"The Anti-Japanese Land Laws of the statute distinguishes not between citizens and
California . . .," 35 Cal.L.Rev. at pp. 21- aliens, but between classes of aliens, and that
24.) Of these about twenty-one states persons eligible to citizenship are given all the
expressly allow aliens, at least those ownership rights of citizens regardless of whether
residing in the state, all the property rights
they intend to become naturalized. Secondly, he
of citizens. All the remaining states impose
contends that the purpose and effect of the statute
some kind of disabilities on aliens, and
759 is to discriminate against *759 aliens solely on the
these vary from outright prohibition of land
basis of race and that such discrimination is
ownership to limitations on the size of
arbitrary and irrational.
holdings or the time land may be held.
Some of these statutory restrictions apply Although it is declared by the United States
to all aliens. Other states distinguish
Supreme Court in the restrictive covenants case,
between classes of aliens, such as those
Shelley v. Kraemer (1947), 334 U.S. 1 [68 S.Ct.
who have and have not declared their
836, 841, 92 L.Ed. 1161, 3 A.L.R.2d 441], relied
intention to become citizens, those who are
upon by plaintiff, that "It cannot be doubted that
and who are not eligible to citizenship,
among the civil rights intended to be protected
those who are enemies and those who are
friends. Nine states, other than California,
from discriminatory state action by the Fourteenth
classify on the basis of eligibility to Amendment are the rights to acquire, enjoy, own
citizenship. and dispose of property," it must be borne in mind
that the Shelley case involved the property rights
25
of a negro citizen. 3 The rule is, of course, settled to make and enforce contracts, to sue, be
that the Fourteenth Amendment protects aliens as parties, give evidence, and to the full and
equal benefit of all laws and proceedings
well as citizens from unreasonable or
for the security of persons and property as
discriminatory state action. ( Yick Wo v. Hopkins
is enjoyed by white citizens. . . ." (8
(1885), 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220];
U.S.C.A. § 41, based on 14 Stat. 27 and 16
Truax v. Raich (1915), 349 U.S. 33 [36 S.Ct. 7, 6
Stat. 144.)
L.Ed. 131].) And, as to equal protection, where
rights other than those relating to land ownership The leading case, Terrace v. Thompson, involves
are involved the United States Supreme Court has the Washington law which prohibited land holding
stated that "The power of a state to apply its laws by all aliens except those who had declared an
exclusively to its alien inhabitants as a class is intention to become American citizens.4 The court
confined within narrow limits." ( Takahashi v. disposes of the due process argument in the
Fish Game Com. (1948), 334 U.S. 410 [68 S.Ct. following manner (pp. 216-217 of 263 U.S.): "The
1138, 1143, 92 L.Ed. 1478].) However, in 1923 Fourteenth Amendment . . . protects the owners in
the United States Supreme Court upheld the their right to lease and dispose of their land for
Washington and California Alien Land Laws lawful purposes and the alien resident in his right
against attack on due process and equal protection to earn a living by following ordinary occupations
grounds, and those decisions have never been of the community, but it does not take away from
overruled. ( Terrace v. Thompson, 263 U.S. 197 the State those powers of police that were reserved
[44 S.Ct. 15, 68 L.Ed. 255] [Washington statute]; at the time of adoption of the Constitution
Porterfield v. Webb, 263 U.S. 225 [44 S.Ct. 21, 68 [citations]. . . . And, while Congress has exclusive
L.Ed. 278] [California statute]; see, also, Webb v. jurisdiction over immigration, naturalization and
O'Brien, 263 U.S. 313 [44 S.Ct. 112, 68 L.Ed. the disposal of the public domain, each State, in
318], and Frick v. Webb, 263 U.S. 326 [44 S.Ct. the absence of any treaty provision to the contrary,
115, 68 L.Ed. 323], sustaining constructions of the has power to deny to aliens the right to own land
California statute which prohibited aliens within its borders." The court points out the
ineligible to citizenship from entering into common law rule that an alien could not hold land
cropping contracts or holding stock in farming against seizure by the crown and concludes that
760 corporations, respectively.) *760 state legislation withholding from all aliens
3 It should be noted that federal legislation equally the right to hold land "can not be said to
enacted pursuant to the Thirteenth and be capricious or to amount to an arbitrary
Fourteenth Amendments does not secure to deprivation of liberty or property, or to transgress
aliens any rights to acquire real property. the due process clause." (P. 218 of 263 U.S.)
The Civil Rights Act provides that "All 4 This classification automatically places
citizens of the United States shall have the
aliens ineligible to citizenship within the
same right, in every State and Territory, as
prohibited group.
is enjoyed by white citizens thereof to
inherit, purchase, lease, sell, hold, and Turning to the equal protection argument the court
convey real and personal property." (8 rejects as "without foundation" the contention that
U.S.C.A. § 42, based on 14 Stat. 27 and 16 the Washington statute discriminated on grounds
Stat. 144.) However, no similar provision is
of race or color, stating that, by the terms of the
made for noncitizen. The act merely
statute, all aliens, of whatever race or color, who
provides: "All persons within the
failed to declare their intention to become citizens
jurisdiction of the United States shall have
were prohibited from owning agricultural lands.
the same right in every State and Territory
The court then holds that discrimination on the
26
basis of ineligibility to citizenship did not violate is distinguished by the court as follows (p. 221 of
the equal protection clause, for the following 263 U.S.): "In the case before us the thing
reasons (pp. 220-221 of 263 U.S.): "Two classes forbidden is very different. It is not an opportunity
of aliens inevitably result from the naturalization to earn a living in common occupations of the
laws — those who may and those who may not community, but it is the privilege of owning or
become citizens. The rule established by Congress controlling agricultural land within the State. The
on this subject, in and of itself, furnishes a quality and allegiance of those who own, occupy
reasonable basis for classification in a state law and use the farm lands within its borders are
withholding from aliens the privilege of land matters of highest importance and affect the safety
ownership. [Italics added.] . . . and power of the State itself."
"It is obvious that one who is not a citizen and Porterfield v. Webb (1923), supra, 263 U.S. 225,
cannot become one lacks an interest in, and the upholding the constitutionality of the California
power to effectually work for the welfare of, the Alien Land Law, was decided the same day as
state, and, so lacking, the state may rightfully deny Terrace v. Thompson and was held to be
him the right to own and lease real estate within its controlled by the Terrace decision. The court, in a
boundaries. If one incapable of citizenship may short opinion reasons as follows: The prohibited
761 *761 lease or own real estate it is within the realm class in the Washington Alien Land Law were all
of possibility that every foot of land within the nondeclarant aliens; this necessarily included all
state might pass to the ownership or possession of aliens ineligible for citizenship, which smaller
non-citizens. . . . The quality and allegiance of group constituted the prohibited class defined by
those who own, occupy and use the farm lands the California act; forbearance of California to
within its borders are matters of highest extend the prohibition to eligible aliens who failed
importance and affect the safety and power of the to declare their intent to become citizens could not
state itself." be said to be arbitrary or unreasonable.
The court in the Terrace decision discusses the As noted above, Terrace v. Thompson and its
case of Truax v. Raich (1915), supra, 239 U.S. 33, companion cases have not only never been
which involves an Arizona statute requiring all 762 overruled by the United States *762 Supreme
employers of more than five persons to employ Court, but the constitutionality of the California
not less than 80 per cent qualified electors or statute was again upheld by this court as recently
native-born citizens. It is there held that the statute as People v. Oyama (1946), supra, 29 Cal.2d 164.
violated the equal protection clause in Although the Supreme Court of the United States
discriminating against alien inhabitants, lawfully reversed our decision ( Oyama v. State of
in the state, with regard to the "right to work for a California (1948), 332 U.S. 633 [68 S.Ct. 269, 92
living in the common occupations of the L.Ed. 249]), upon the narrow ground that a
community," and, further, that the denial of such presumption declared by section 9(a) of the act,
right to aliens would be tantamount to denying and relied on in the case, violated the rights of
them entrance and abode in the state and would citizens who were the children of ineligible aliens
conflict with the exclusive federal power over and arbitrarily discriminated against such citizens,
immigration. I cannot overlook the highly important fact that
that court refused to overrule its earlier holdings
The "right to work for a living in the common
that the Alien Land Law is constitutional insofar
occupations of the community," secured to all
as it relates to the land rights of ineligible aliens
aliens by the Truax case, was urged as a reason for
themselves. These holdings, as well as our own
invalidating alien land laws in the Terrace case but
27
antecedent expressions to the same effect, are Exclusion Act of 1924 (43 Stat. 161, 8 U.S.C. §
sound expositions of the best constitutional 213(c)); hence the number of Japanese aliens
precepts. legally in the state in 1949 was probably less than
in 1940 due to death, changes of residence,
It is inescapable that it is settled by the foregoing
deportation and other causes. For the purposes of
cases and numerous other decisions sustaining the
the constitutional test of state legislation, however,
validity of specific provisions of the Alien Land
it is immaterial that the number of races embraced
Law that classification on the basis of eligibility to
in the ineligible class has been narrowed by the
citizenship is proper for the purpose of
Congress through recent amendments to the
determining who may own and enjoy land.
naturalization laws; the Congress itself has made
With reference to the statement made in the and it has preserved the class; it has set and
Terrace case that if aliens ineligible to citizenship defined the limits and the qualifications of
could own farm land, they might possibly acquire eligibles; the class of ineligibles may be
all such land in the state, plaintiff argues that broadened again in the future and it is still within
natural events and changes in the naturalization the realm of possibility that ineligible aliens might
and immigration laws since the Terrace decision acquire a disproportionate share, or dangerously
have reduced such a possibility to the vanishing located and extensive areas, of land in the state.
point. Moreover, he urges, these changes in 5 For purposes of this discussion, defendant
circumstances of themselves warrant excludes from consideration all persons
reexamination of the land law. ineligible to citizenship for reasons other
than their race, such as those who do not
When the Terrace case was decided, in 1923, only
speak English or have not satisfied the
white persons and persons of African nativity and
residence requirement or are not attached
descent were eligible to become citizens.
to the political principles of this country.
(Naturalization Act of 1790; 18 Stat. 318 (1875).)
(See 8 U.S.C.A. § 704 et seq.)
At the time the present proceeding was begun, in
1949, the naturalization laws had been amended to Plaintiff further contends that most, if not all of
provide that the following may become citizens: the reasoning of the Terrace and Porterfield cases
"descendants of races indigenous to the Western has been repudiated by the United States Supreme
Hemisphere" (8 U.S.C.A. § 703; 54 Stat. 1140, ch. Court in Oyama v. State of California (1948),
876 (1940)); "any person not a citizen, regardless supra, 68 S.Ct. 269; Ex parte Endo (1944), 323
of age, who has served or hereafter serves U.S. 283, 302 [65 S.Ct. 208, 89 L.Ed. 243]; and
honorably in the military or naval forces of the Takahashi v. Fish Game Com. (1948), supra, 68
United States" (8 U.S.C.A. § 1001; 56 Stat. 182 S.Ct. 1138, and that a state court may "properly"
(1942)); Chinese persons and persons of Chinese disregard them, as, it is said, was recently done by
descent (8 U.S.C.A. § 703; 57 Stat. 601 (1943)); the Oregon Supreme Court in Namba v. McCourt
Filipinos and persons indigenous to India (8 (1949), 185 Or. 579 [ 204 P.2d 569]. It was there
U.S.C.A. § 703; 60 Stat. 416 (1946)). Thus, in held that the Oregon Alien Land Law, one similar
1949, the California Alien Land Law could to the California statute, violated the Fourteenth
operate only against Orientals who are Japanese Amendment in placing restrictions on aliens
763 and against certain other races, such as *763 ineligible to citizenship but not on other aliens,
Polynesians.5 According to 1940 census figures, since there was no valid reason why the
the alien Japanese population discovered and ineligibles, as a class of aliens, should not be
counted in California was 33,569. Immigration of permitted to own and rent agricultural land. The
persons ineligible to citizenship was halted by the court reviewed the decisions of the United States
28
Supreme Court on the subject, giving particular The critical question (if this court assumes to
attention to the Oyama and Takahashi cases, and reexamine the problem) in determining whether
conjectured that the United States Supreme Court the land law accords with the guarantee of equal
"no longer deems the [Terrace and related] cases protection is whether the discrimination between
binding." (No petition for certiorari to the United persons ineligible to citizenship and those who are
States Supreme Court was filed.) Regardless of citizens or eligible to citizenship is "based upon
the thought expressed by the Oregon court, it is some difference in the classes having a substantial
my view that since none of the cases relied upon relation to a legitimate object to be accomplished."
764 *764 by plaintiff passed upon the power of the (See Takahashi v. Fish Game Com. (1947), 30
state to regulate alien ownership of land within its Cal.2d 719, 727 [ 185 P.2d 805] (reversed 334
boundaries, such cases are not controlling here. U.S. 410, 422 [68 S.Ct. 1138, 92 L.Ed. 1478], on
the ground that the classification there involved
In reliance upon the statements in the Truax and
was unconstitutionally discriminatory, but
Takahashi cases that discrimination is invalid
expressly distinguishing the land law cases); see,
when it deprives an alien of the "right to work for
also, Werner v. Southern Calif. etc. Newspapers
a living in the common occupations of the
(1950), supra, 35 Cal.2d 121, 131; Watson v.
community," or prevents him from "earning a
Division of Motor Vehicles (1931), 212 Cal. 279,
living in the same way that other state inhabitants
765 284-285 *765 [ 298 P. 481].) And, as plaintiff
earn their living" ( Truax v. Raich (1915), supra,
concedes, upon the outcome of this question will
36 S.Ct. 7, 10; Takahashi v. Fish Game Com.
depend the answer to plaintiff's contention that the
(1948), supra, 68 S.Ct. 1138, 1142), plaintiff urges
Alien Land Law constitutes special legislation in
that although farming is one of the most ancient
violation of the California Constitution. (See
and common ways of earning a living, the Terrace
Lelande v. Lowery (1945), 26 Cal.2d 224, 232 [
v. Thompson rule permits a state, in the absence of
157 P.2d 639, 175 A.L.R. 1109]; County of Los
a treaty, to so restrict an alien that he can farm
Angeles v. Southern Calif. Tel. Co. (1948), supra,
land only in the capacity of an employee or hired
32 Cal.2d 378, 389.)
hand, and also permits a state to restrict an alien in
following occupations other than farming, since it The following pertinent principles are well
is necessary to the operation of any ordinary established: "Wide discretion is vested in the
business or industry to own or lease land upon Legislature in making the classification and every
which a shop or factory may be located. The effect presumption is in favor of the validity of the
of such legislation, argues plaintiff, is to impose statute; the decision of the Legislature as to what
upon the alien ineligible to citizenship an is a sufficient distinction to warrant the
economic status inferior to that of all other persons classification will not be overthrown by the courts
living in the state. Such argument ignores the fact unless it is palpably arbitrary and beyond rational
that land ownership is held by only a relatively doubt erroneous. [Citations.] A distinction in
few of the inhabitants of this state and nation, is legislation is not arbitrary if any set of facts
not at all a necessary attribute of an equality of reasonably can be conceived that would sustain
economic status, and is not desired or availed of it." ( Sacramento M.U. Dist. v. Pacific Gas Elec.
by many who enjoy ample economic security. It is, Co. (1942), 20 Cal.2d 684, 693 [ 128 P.2d 529];
therefore, not persuasive to the end of striking see, also, In re Herrera (1943), 23 Cal.2d 206, 212
down a law which has been duly enacted by the [ 143 P.2d 345]; Reclamation District v. Riley
people of the state and which has been sustained (1923), 192 Cal. 147, 156 [ 218 P. 762].) "The
by the highest courts of state and nation for more existence of facts supporting the legislative
than a quarter of a century. judgment is to be presumed and the burden of
29
overcoming the presumption of constitutionality is citizenship may reasonably be determined by the

cast upon the assailant." ( Takahashi v. Fish Game people of a state to constitute a threat to the safety
Com. (1947), supra, 30 Cal.2d 719, 728; see, also, or welfare of the state because such ineligible
People v. Western Fruit Growers (1943), supra, 22 persons cannot be bound by an oath of allegiance
Cal.2d 494, 507; In re Fuller (1940), 15 Cal.2d to the United States, of which each state is an
425, 437 [ 102 P.2d 321]; California Physicians' inseparable part, and, as a class, their loyalty to
Service v. Garrison (1946), 28 Cal.2d 790, 803 [ and interest in the state are suspect, and further,
172 P.2d 4, 167 A.L.R. 306].) The classification such ownership of the land by its citizens, or those
should be reasonable; i.e., "have a substantial who can become such, bears a vital relationship to
relation to a legitimate object to be accomplished . the strength of a free country. As declared in Mott
. . [I]t is not our concern whether the Legislature v. Cline (1927), 200 Cal. 434, 447 [ 253 P. 718],
has adopted what we might think to be the wisest "It has been firmly settled by the decisions of both
and most suitable means of accomplishing its federal and state courts [citations] that the
objects. [Citations.]" ( Lelande v. Lowery (1945), adoption of the Alien Land Acts was a lawful
supra, 26 Cal.2d 224, 232, 234.) exercise of the police power. In fact, it is the
exercise of that power in its highest and truest
In Werner v. Southern Calif. etc. Newspapers
sense. The ownership of the soil by persons
(1950), supra, 35 Cal.2d 121, 131, quoting from
morally bound by obligations of citizenship is
County of Los Angeles v. Southern Calif. Tel. Co.
vital to the political existence of the state. It
(1948), supra, 32 Cal.2d 378, 390, and People v.
directly affects its welfare and safety."6 (See, also,
Western Fruit Growers (1943), supra, 22 Cal.2d
Palermo v. Stockton Theatres, Inc. (1948), 32
494, 506, the rule is reaffirmed in these words:
Cal.2d 53, 63 [ 195 P.2d 1].) The question is not
"Problems of classification under the California
whether every individual ineligible alien may be
Constitution are thus similar to those presented by
said to be disloyal to this nation, but whether the
the federal equal protection of the laws clause of
loyalty of such ineligible aliens as a class may be
the 14th Amendment. Under either provision, the
doubted.7 It is not within the province of this
mere production of inequality which necessarily
results to some degree in every selection of court, especially in the light of history which need
766 persons for regulation *766 does not place the go no further back than December 7, 1941, to
classification within the constitutional prohibition. 767 declare *767 that such doubt is unreasonable and
The discrimination or inequality produced, in bears no substantial relationship to the public
order to conflict with the constitutional provisions, welfare.
must be 'actually and palpably unreasonable and 6 The importance attached to domestic
arbitrary,' or the legislative determination as to control of land ownership is not merely
what is a sufficient distinction to warrant the local to this state or nation; its far-flung
classification will not be overthrown. [Citations.] recognition must be obvious to every
When a legislative classification is questioned, if reader of history or current events. We
any state of facts reasonably can be conceived that need mention only two examples: (1) The
relatively recent expropriation acts of the
would sustain it, there is a presumption of
Republic of Mexico; (2) the pending
existence of that state of facts, and the burden of
controversy between Great Britain and Iran
showing arbitrary action rests upon the one who
over the petroleum bearing lands of the
assails the classification."
latter nation.
Applying these rules to the present controversy, it
can hardly be seriously doubted that use or
ownership of land by persons ineligible to
30
7 As is pointed out by Walter Pitkin in his 8 The following argument appears in the
"Must We Fight Japan?" (1921, The pamphlet: "Its primary purpose is to
Century Co., p. 440), "The loyalty of the prohibit Orientals who cannot become
Japanese to his Government stands above American citizens from controlling our rich
all else. That is his religion." agricultural lands . . . Orientals, and more
particularly Japanese, [have] commenced
Likewise without merit is plaintiff's contention to secure control of agricultural lands in
that the purpose and effect of the Alien Land Law California." Further arguments in the
is to discriminate against him solely because of his pamphlet in support of the measure were
race, and that despite the fact that the law does not directed against the Japanese alone,
mention race or color on its face we should without reference to other Orientals or to
determine that it was the result of race prejudice others who were ineligible for American
against Orientals and particularly Japanese, and citizenship.
declare it therefore unconstitutional. In this respect 9 Yano involves a provision of the act
plaintiff relies upon certain arguments in favor of prohibiting the appointment of an ineligible
the legislation contained in the official pamphlet8 alien as guardian of land. The court, in
mailed to the voters prior to the election at which holding that the right of a father to be
the act was to be voted upon, as well as on appointed guardian of the person and estate
statements in Estate of Yano 9 (1922), 188 Cal. of his citizen minor child did not depend
645, 654, 658 [ 206 P. 995]. Plaintiff's position on upon his own eligibility to citizenship,
stated that the prohibitory provision "is
this point ignores the fundamental and controlling
clearly a discrimination against citizens of
fact, however, that it is those who are ineligible for
Japan residing in this state," and that the
citizenship, regardless of race or color, to whom
object thereof was "to discourage the
the Alien Land Law applies, and that it is
coming of Japanese into this state."
Congress and not the State of California that
determines such ineligibility. It is clear that the 10 The California State Board of Control in
statements in Estate of Yano upon which plaintiff 1920 prepared a report on the situation then
relies have no application to the problem here confronting the state. In a letter of
involved and do no more than recognize that transmittal of the report (and published
therewith), written by Governor Wm. D.
Japanese fall within the class whom Congress has
Stephens of California to Hon. Bainbridge
refrained from declaring eligible. Moreover, as
Colby, Secretary of State, Washington,
pointed out in the Terrace case (p. 223 of 263
D.C., dated June 19, 1920, the following
U.S.), it was in accordance with the desire of
reference is made to facts which appear
Japan that the right to own land was not conferred more fully in the report itself: "The
by either that nation or the United States upon the Japanese in our midst have indicated a
nationals of the other. To argue, in the face of such strong trend to land ownership and land
circumstance, that the California Alien Land Law control, and by their unquestioned industry
is directed at plaintiff solely because of his race and application, and by standards and
simply denies reality. Furthermore, the fact that methods that are widely separated from our
the attention of the citizens was being attracted occidental standards and methods, both in
768 chiefly to the *768 Japanese by the very nature and connection with hours of labor and
extent of their activities 10 in the state, far from standards of living, have gradually
developed to a control of many of our
showing racial prejudice as the motivating cause
important agricultural industries. Indeed, at
for the land act, indicates a sound basis for the
the present time they operate 458,056 acres
law.
of the very best lands in California. The
31
increase in acreage control within the last instructor in Japanese history and
decade, according to these official figures economics at Leland Stanford University.
has been 412.9 per cent. In productive In 1915 Mr. Ichihashi published a volume
values — that is to say, in the market value on 'Japanese Immigration,' in which he
of crops produced by them — our figures presented detailed charts that brought out
show that as against $6,235,856 worth of the following remarkable facts:
produce marketed in 1909, the increase has "Out of every 100 people growing berries
been to $67,145,730, approximately in California, 88 are Japanese. Out of every
tenfold. 100 who raise sugar beets, 67 are Japanese.
"More significant than these figures, Out of every 100 who grow grapes, 52 are
however, is the demonstrated fact that Japanese. Out of every 100 who raise
within the last ten years Japanese vegetables (for market, of course), 46 are
agricultural labor has developed to such a Japanese. Out of every 100 who grow
degree that at the present time between 80 citrus fruits, 39 are Japanese. Out of every
and 90 per cent of most of our vegetable 100 who grow deciduous fruits, 36 are
and berry products are those of the Japanese.
Japanese farms. Approximately 80 per cent "The State board [of Control], in
of the tomato crop of the state is produced commenting upon these findings, holds
by the Japanese; from 80 to 100 per cent of that the percentages would run
the spinach crop; a greater part of our considerably higher today."
potato and asparagus crops and so on. So
In the same letter of transmittal of the
that it is apparent that without much more
report of the state board, the attitude of
effective restrictions that in a very short
California in respect to the Japanese people
time, historically speaking, the Japanese
was officially expressed by Governor
population within our midst will represent
Stephens as follows:
a considerable portion of our entire
"It is also proper to state that I believe I
population, and the Japanese control over
speak the feelings of our people when I
certain essential food products will be an
express to you a full recognition of the
absolute one." ("California and the
many admirable qualities of the Japanese
Oriental" by State Board of Control of
people. We assume no arrogant superiority
California, 1920 ed., pp. 8, 45, 49-52.)
of race or culture over them. Their art, their
Again, Walter B. Pitkin in "Must We Fight
literature, their philosophy, and, in recent
Japan?" (The Century Co., 1921), speaks of
years, their scientific attainments have
the competition imposed on the non-
gained for them a respect from the white
Oriental American farmer who made a
peoples in which we, who know them so
practice of taking Sundays off and of
well, fully share. We have learned to
working only ten or twelve hours a day, by
admire the brilliancy of their art and the
the Japanese whose schedules ran from
genius that these people display. We
fourteen to eighteen hours a day. Says Mr.
respect that deep philosophy which flows
Pitkin (pp. 207-8): "The results of such
so placidly out of that wonderful past of
competition can be clearly read all over
theirs and which has come down through
California. For the statistics we need not go
ages that antedate our Christian era. We
to American observers, who may be
join with the entire civilized world in our
suspected of prejudice. We have luckily at
admiration of the tremendous strides which
hand a comprehensive study of the
the Japanese nation itself has made in the
expansion of Japanese farmers which has
last two generations unparalleled as its
been made by one of their own
career is in the history of nations. We
countrymen, one Yamato Ichihashi,
32
respect the right of the Japanese to their naturalization laws changing eligibility provisions
true development and to the attainment of operate to amend the state law without the consent
their destiny. of the people or the Legislature of this state has
"All these matters I am at pains to already been rejected by this court in People v.
emphasize so as to convince you, and, Oyama (1946), supra, 29 Cal.2d 164, 178,11 in the
through you the people of the United
following language: "The Legislature of this state
States, that this problem of ours is not an
has set up eligibility to citizenship as a primary
insignificant or temporary one. It is not
standard, and because the determination of some
factious. It has no origin in narrow race
fact or condition incorporated in this primary
prejudice or rancor or hostility. It is,
however, a solemn problem affecting our
standard rests elsewhere than in the Legislature, or
entire Occidental civilization." (P. 9 of 770 this requirement is to *770 be measured by another
"California and the Oriental" by State standard not under the control of the state and
Board of Control of Calif., 1920 ed.) which may be subject to change, does not amount
See, also, discussion "Is This a Racial to an unconstitutional delegation of legislative
War?" in "Report From Tokyo" (Grew, authority. [Citations.]" (See, also, Palermo v.
1942, p. 65, Simon and Schuster). Stockton Theatres, Inc. (1948), supra, 32 Cal.2d
53, 59.)
Plaintiff's argument that the Alien Land Law
11 See Oyama v. State of California (1948),
interferes with the power of Congress over
332 U.S. 633 [68 S.Ct. 269, 92 L.Ed. 249].
legislation is answered by the declaration in the
Terrace case (p. 217) that "while Congress has I agree that the United Nations Charter, as
exclusive jurisdiction over immigration, presently constituted and accepted was not
naturalization and the disposal of the public intended to, and does not, supersede existing
domain, each State, in the absence of any treaty domestic legislation of the United States or of the
provision to the contrary, has power to deny to several states and territories.
aliens the right to own land within its borders."
Traux v. Raich (1915), supra, 239 U.S. 33, 42, and I would hold that provisions of the Alien Land
Takahashi v. Fish Game Com. (1948), supra, 334 Law here invoked by the State of California do not
U.S. 410, 419, do not involve land laws, and contravene either the federal or state
statements therein which are relied upon by Constitutions; and would affirm the judgment of
769 plaintiff are not controlling here. *769 the trial court.
Plaintiff's further contention that the law under Shenk, J., and Spence, J., concurred.
attack unlawfully delegates state legislative
powers to Congress because amendments to the
33

Sei Fujii v. State of California

Uploaded by

Copyright:

Available Formats

Sei Fujii v. State of California

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Sei Fujii v. State of California

Uploaded by

Copyright:

Available Formats

Docket No. L.A.

Sei Fujii v. State of California

Docket No. L.A. 21149. possess, enjoy, use, cultivate, occupy,

state. There is no treaty between this country and

of the charter. treaties possess that character, as soon as

Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed.

decision that one objective of the licensing law respectively.

was "to protect California citizens engaged in

overcoming the presumption of constitutionality is citizenship may reasonably be determined by the

You might also like