SEI FUJII v. THE STATE OF CALIFORNIA

Supreme Court of California
38 Cal. 2d 718; 242 P.2d 617
Decided: April 17, 1952

Justice GIBSON
Plaintiff, an alien Japanese who is ineligible to citizenship under our naturalization laws, appeals from a judgment declaring that certain land purchased by him in 1948 had escheated to the state. There is no treaty between this country and Japan which confers upon plaintiff the right to own land, and the sole question presented on this appeal is the validity of the California Alien Land Law.

United Nations Charter
It is first contended that the land law has been invalidated and superseded by the provisions of the United Nations Charter pledging the member nations to promote the observance of human rights and fundamental freedoms without distinction as to race. Plaintiff relies on statements in the preamble and in articles 1, 55 and 56 of the charter.

It is not disputed that the charter is a treaty, and our federal Constitution provides that Treaties made under the authority of the United States are part of the supreme law of the land and that the judges in every state are bound thereby. (U.S. Const., art. VI) A treaty, however, does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing. In the words of Chief Justice Marshall: A treaty is “to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract — when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the Legislature must execute the contract, before it can become a rule for the court.”(Foster v. Neilson (1829), 2 Pet. (U.S.) 253, 314.)

In determining whether a treaty is self-executing courts look to the intent of the signatory parties as manifested by the language of the instrument, and, if the instrument is uncertain, recourse may be had to the circumstances surrounding its execution. (See Foster v. Neilson, 2 Pet. (U.S.) 253, 310-316; United States v. Percheman, 7 Pet. (U.S.) 51, 58-59; Jones v. Meehan, 175 U.S. 1, 10-23; Chew Heong v. United States, 112 U.S. 536, 539-543; Cook v. United States, 288 U.S. 102, 119; cf. Nielsen v. Johnson, 279 U.S. 47, 52.) In order for a treaty provision to be operative without the aid of implementing legislation and to have the force and effect of a statute, it must appear that the framers of the treaty intended to prescribe a rule that, standing alone, would be enforceable in the courts. (See Head Money Cases, 112 U.S. 580, 598; Whitney v. Robertson, 124 U.S. 190, 194 ; Cook v. United States, 288 U.S. 102, 118-119; Valentine v. United States, 299 U.S. 5, 10; Bacardi Corp. v. Domenech, 311 U.S. 150, 161.)

It is clear that the provisions of the preamble and of article 1 of the charter which are claimed to be in conflict with the alien land law are not self-executing. They state general purposes and objectives of the United Nations Organization and do not purport to impose legal obligations on the individual member nations or to create rights in private persons. It is equally clear that none of the Other provisions relied on by plaintiff is self-executing. Article 55 declares that the United Nations “shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion,”and in article 56, the member nations “pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.”Although the member nations have obligated themselves to cooperate with the international organization in promoting respect for, and observance of, human rights, it is plain that it was contemplated that future legislative action by the several nations would be required to accomplish the declared objectives, and there is nothing to indicate that these provisions were intended to become rules of law for the courts of this country upon the ratification of the charter.

The language used in articles 55 and 56 is not the type customarily employed in Treaties which have been held to be self-executing and to create rights and duties in individuals. For example, the treaty involved in Clark v. Allen, 331 U.S. 503, 507-508, relating to the rights of a national of one country to inherit real property located in another country, specifically provided that “such national shall be allowed a term of three years in which to sell the property . . . and withdraw the proceeds . . .”free from any discriminatory taxation. (See, also, Hauenstein v. Lynham, 100 U.S. 483, 488-490.) In Nielsen v. Johnson, 279 U.S. 47, 50, the provision treated as being self-executing was equally definite. There each of the signatory parties agreed that “no higher or other duties, charges, or taxes of any kind, shall be levied”by one country on removal of property therefrom by citizens of the other country “than are or shall be payable in each State, upon the same, when removed by a citizen or subject of such state respectively.”In other instances treaty provisions were enforced without implementing legislation where they prescribed in detail the rules governing rights and obligations of individuals or specifically provided that citizens of one nation shall have the same rights while in the other country as are enjoyed by that country’s own citizens. (Bacardi Corp. v. Domenech, 311 U.S. 150, 158-159; Asakura v. Seattle, 265 U.S. 332, 340; see Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268, 273-274; Chew Heong v. United States, 112 U.S. 536, 541-542.)

It is significant to note that when the framers of the charter intended to make certain provisions effective without the aid of implementing legislation they employed language which is clear and definite and manifests that intention. For example, article 104 provides: “The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.”Article 105 provides: “1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. 2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.”In Curran v. City of New York, 77 N.Y.S.2d 206, 212, these articles were treated as being self-executory. (See, also, Balfour, Guthrie & Co. v. United States, 90 F.Supp. 831, 832.)

The provisions in the charter pledging cooperation in promoting observance of fundamental freedoms lack the mandatory quality and definiteness which would indicate an intent to create justiciable rights in private persons immediately upon ratification. Instead, they are framed as a promise of future action by the member nations. Secretary of State Stettinius, chairman of the United States delegation at the San Francisco Conference where the charter was drafted, stated in his report to President Truman that article 56 “pledges the various countries to cooperate with the organization by joint and separate action in the achievement of the economic and social objectives of the organization without infringing upon their right to order their national affairs according to their own best ability, in their own way, and in accordance with their own political and economic institutions and processes.”(Report to the President on the Results of the San Francisco Conference by the Chairman of the United States Delegation, the Secretary of State, Department of State Publication 2349, Conference Series 71, p. 115; Hearings before the Committee on Foreign Relations, United States Senate July 9-13, 1945, p. 106.) The same view was repeatedly expressed by delegates of other nations in the debates attending the drafting of article 56. (See U.N.C.I.O. Doc. 699, II/3/40, May 30, 1945, pp. 1-3; U.N.C.I.O. Doc. 684, II/3/38, May 29, 1945, p. 4; KELSEN, THE LAW OF THE UNITED NATIONS, footnote 9, pp. 100-102.)

The humane and enlightened objectives of the United Nations Charter are, of course, entitled to respectful consideration by the courts and legislatures of every member nation, since that document expresses the universal desire of thinking men for peace and for equality of rights and opportunities. The charter represents a moral commitment of foremost importance, and we must not permit the spirit of our pledge to be compromised or disparaged in either our domestic or foreign affairs. We are satisfied, however, that the charter provisions relied on by plaintiff were not intended to supersede existing domestic legislation, and we cannot hold that they operate to invalidate the Alien Land Law.

Fourteenth Amendment of the Federal Constitution
The next question is whether the Alien Land Law violates the Due Process and equal protection clauses of the Fourteenth Amendment. Plaintiff asserts, first, that the statutory classification of aliens on the basis of eligibility to citizenship is arbitrary for the reason that discrimination against an ineligible alien bears no reasonable relationship to promotion of the safety and welfare of the state. He points out that the land law distinguishes not between citizens and aliens, but between classes of aliens, and that persons eligible to citizenship are given all the rights of citizens regardless of whether they desire or intend to become naturalized. Secondly, he contends that the effect of the statute, as well as its purpose, is to discriminate against aliens solely on the basis of race and that such discrimination is arbitrary and unreasonable.

The issue of the constitutionality of the Alien Land Law is thus again presented to this court, and we are met at the outset with the contention that a re-examination of the question is foreclosed by decisions of the United States Supreme Court rendered in 1923 upholding the statute. (Porterfield v. Webb, 263 U.S. 225; Webb v. O’Brien, 263 U.S. 313; Frick v. Webb, 263 U.S. 326; cf. Terrace v. Thompson, 263 U.S. 197. See, also, Cockrill v. California (1925), 268 U.S. 258.) This objection is a serious one, and we have rejected it only after the most careful deliberation.

In 1946, this court applied the rule of Porterfield v. Webb, 263 U.S. 225, in the case of People v. Oyama, 29 Cal.2d 164, and in the following year, in Takahashi v. Fish & Game Com., 30 Cal.2d 719, it upheld other legislation which classified aliens on the basis of eligibility to citizenship. Both judgments were reversed upon certiorari in 1948. (Oyama v. California, 332 U.S. 633; Takahashi v. Fish & Game Com., 334 U.S. 410.) These and other recent decisions of the United States Supreme Court , which we shall discuss later, state and apply concepts of rights under the Fourteenth Amendment that are at variance with the opinions in the earlier cases.

The holding of the United States Supreme Court in the Oyama case was that a presumption declared by section 9 of the alien land law violated the rights of citizens who were children of ineligible aliens and discriminated against such citizens solely because of their parents’ ancestry. The court was also confronted with the claim that the general provisions of the land law denied ineligible aliens the equal protection of the laws, and it is significant that the contention was not discussed by the majority opinion although it could easily have been disposed of by citation of Porterfield v. Webb had there been no question in the minds of the members of the court with respect to the correctness of that decision. In rejecting an argument that the presumption was necessary to prevent evasion of the prohibition against ownership of land by ineligible aliens, the court speaking through Chief Justice Vinson said, “This reasoning presupposes the validity of that prohibition, a premise which we deem it unnecessary and therefore inappropriate to re-examine in this case. But assuming, for purposes of argument only, that the basic prohibition is constitutional, it does not follow that there is no constitutional limit to the means which may be used to enforce it.”(332 U.S. at p. 646, 68 S.Ct. at p. 275; see, also, footnote 27 to majority opinion.) Four justices concurred in the result on the broad ground that the basic provisions of the alien land law violate the Fourteenth Amendment, stating that previous decisions upholding the statute should be overruled.

Takahashi v. Fish & Game Com., 334 U.S. 410, gives further indication that the Porterfield decision is no longer to be regarded as settled law. In the Takahashi case a California statute which denied commercial fishing licenses to “aliens ineligible for citizenship”was invalidated on the ground that it violated the equal protection clause and conflicted with federal immigration power when it prevented ineligible aliens from earning a living as fishermen. In answer to arguments relying by analogy on Porterfield v. Webb and similar cases, the court said: “Assuming the continued validity of those cases, we think they could not in any event be controlling here.”(334 U.S. at p. 422, 68 S.Ct. at p. 1144.) There was thus another intimation that the court might not regard those decisions as binding authority if the constitutionality of the alien land laws were again squarely presented for determination.

Our view that we are not precluded from re-examining the question is reinforced by the recent case of Kenji Namba v. McCourt (1949), 185 Ore. 579, where the Supreme Court of Oregon, in holding invalid the alien land law of that state, reviewed the opinions of the United States Supreme Court and concluded that the Porterfield and related cases had been disapproved by Oyama v. California, 332 U.S. 633, and Takahashi v. Fish & Game Com., 334 U.S. 410.

It thus appears that the decisions of the United States Supreme Court do not foreclose, but rather invite, further consideration of the constitutional issues which have been raised.

The leading case involving alien land legislation, Terrace v. Thompson, 263 U.S. 197, upheld a Washington law prohibiting landholding by any alien who had failed to file a declaration of intention to become an American citizen. While that statute did not mention eligibility for naturalization, the court noted that a class composed of nondeclarant aliens necessarily included all ineligible aliens, and it concluded that discrimination between aliens on the basis of ineligibility to citizenship did not violate the equal protection clause. The following reasons were given in support of the decision: (1) “Two classes of aliens inevitably result from the naturalization laws, — those who may and those who may not become citizens. The rule established by Congress on this subject, in and of itself, furnishes a reasonable basis for classification in a State law withholding from aliens the privilege of land ownership . . .”(2) “It is obvious that one who is not a citizen and cannot become one lacks an interest in, and the power to effectually work for the welfare of, the state, and, so lacking, the state may rightfully deny him the right to own and lease real estate within its boundaries.”(3) “If one incapable of citizenship may lease or own real estate, it is within the realm of possibility that every foot of land within the state might pass to the ownership or possession of noncitizens.”It was also said that the “quality and allegiance of those who own, occupy and use the farm lands within its borders are matters of highest importance and affect the safety and power of the State itself.”(263 U.S. at pp. 220-221, 44 S.Ct. at p. 20.)

Porterfield v. Webb, 263 U.S. 225, upholding the constitutionality of the California alien land law, was decided the same day as Terrace v. Thompson and was held to be controlled by that decision. The court, in a short opinion, reasoned as follows: The prohibited class under the Washington law consisted of nondeclarant aliens; this necessarily included all aliens ineligible for citizenship, which was the prohibited class defined by the California act; and the failure of California to extend the prohibition to eligible aliens who failed to declare their intent to become citizens could not be said to be arbitrary or unreasonable.

The foregoing summary covers all the grounds upon which our alien land law has heretofore been upheld by the United States Supreme Court. As we shall see, Porterfield v. Webb, 263 U.S. 225, has been greatly weakened by subsequent decisions, and it is settled that the authority of an older case may be as effectively dissipated by a later trend of decision as by a statement expressly overruling it. (See, for example, Olsen v. Nebraska, 313 U.S. 236, 244-246.) Constitutional principles declared in recent years are irreconcilable with the reasoning of the earlier cases and lead us to conclude that the statute violates the equal protection clause of the Fourteenth Amendment.

There can be no question that the rights to acquire, enjoy, own and dispose of property are “among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment,”and that the power of a state to regulate the use and ownership of land must be exercised subject to the controls and limitations of that amendment. (Shelley v. Kraemer, 334 U.S. 1, 10; see Terrace v. Thompson, supra, 263 U.S. 197, 218.)

The California act, in the absence of treaty, withholds all interests in real property from aliens who are ineligible to citizenship under federal naturalization laws, and the Nationality Code limits the right of naturalization to certain designated races or nationalities, excluding Japanese and a few racial groups comparatively small in numbers. (8 U.S.C.A. § 703.) Congress, however, at least prior to 1924, saw fit to permit aliens who are ineligible for citizenship to enter and reside in the United States despite the fact that they could not become naturalized, and such aliens are entitled to the same protection as citizens from arbitrary discrimination. (Yick Wo v. Hopkins, 118 U.S. 356; Truax v. Raich, 239 U.S. 33.) Accordingly, the statute cannot be sustained unless it can be shown that the public interest requires limitation of their rights to acquire and enjoy interests in real property.

By its terms the land law classifies persons on the basis of eligibility to citzenship, but in fact it classifies on the basis of race or nationality. This is a necessary consequence of the use of the express racial qualifications found in the federal code. Although Japanese are not singled out by name for discriminatory treatment in the land law, the reference therein to federal standards for naturalization which exclude Japanese operates automatically to bring about that result. This was recognized in Oyama v. California, supra, 332 U.S. 633, 640, 644, where Chief Justice Vinson, speaking for a majority of the court, concluded that the alien land law as applied in that case discriminated against a Japanese-American citizen, and that the “only basis for this discrimination . . . was the fact that his father was Japanese and not American, Russian, Chinese, or English.”It was on this ground that the court invalidated a presumption contained in the California land law, stating that “only the most exceptional circumstances can excuse discrimination on that basis in the face of the equal protection clause.”(332 U.S. at p. 646, 68 S.Ct. at p. 275.)

Subsequent to the Oyama case the Supreme Court condemned the enforcement by state courts of covenants which restrict occupancy of real property on the basis of race or color, and it expressly pointed out that statutes incorporating such restrictions would violate the Fourteenth Amendment. (Shelley v. Kraemer, 334 U.S. 1, 11.) While the persons discriminated against in the Shelley and Oyama cases were citizens, it is clear, as we have seen, that the Fourteenth Amendment protects aliens as well as citizens from arbitrary discrimination. (Yick Wo v. Hopkins, 118 U.S. 356; Truax v. Raich, 239 U.S. 33.)

As a general rule a legislative classification will be sustained if it is reasonable and has a substantial relation to a legitimate object, and the existence of any reasonably conceivable state of facts sufficient to uphold the legislation will be presumed. (Lelande v. Lowery, 26 Cal.2d 224, 232; Sacramento M. U. Dist. v. Pacific Gas & Elec. Co., 20 Cal.2d 684, 693.) Where, however, as here, the classification is on the basis of race, it is “immediately suspect”and will be subjected “to the most rigid scrutiny.”(Korematsu v. United States, 323 U.S. 214, 216.) In Perez v. Sharp, 32 Cal.2d 711, 719, Justice Traynor pointed out that “Race restrictions must be viewed with great suspicion, for the Fourteenth Amendment ‘was adopted to prevent state legislation designed to discriminate on the basis of race or color’ (Railway Mail Ass’n v. Corsi, 326 U.S. 88, 94; Williams v. International Brotherhood of Boilermakers, 27 Cal.2d 586, 590) and expresses ‘a definite national policy against discrimination because of race or color.’ (James v. Marinship Corp., 25 Cal.2d 721, 740.) Any state legislation discriminating against persons on the basis of race or color has to overcome the strong presumption inherent in this constitutional policy.”(See also Shelley v. Kraemer, 334 U.S. 1, 23, for discussion of purpose of Fourteenth Amendment with regard to race and color.)

The clear import of the statements quoted above from the Korematsu, Oyama and Perez cases is that the presumption of validity is greatly narrowed in scope, if not entirely dispelled, whenever it is shown, as here, that legislation actually discriminates against certain persons because of their race or nationality. This view, now established by the latest declarations of the United States Supreme Court, is irreconcilable with the approach previously taken by that court in the Porterfield case in determining whether there was a reasonable relation between the purposes sought to be accomplished, and the classification adopted, in the California Alien Land Law.

The opinion of Justice Butler in the Porterfield case overlooked the fact that the classification resulted in racial discrimination, and it did not consider the validity of the California law in the light of the present rule that restrictive measures which curtail the rights of a racial group must be carefully scrutinized. As noted above, that decision was based upon the authority and reasoning of Terrace v. Thompson, supra, 263 U.S. 197, which involved a statute classifying aliens on the basis of whether or not they had filed a declaration of intention to become citizens. The court there rejected a contention that such classification discriminated because of race or color by pointing out that under the terms of the statute all nondeclarant aliens, of whatever race or color, were prohibited from owning land. The statement is obviously inapplicable to the California statute, and the Porterfield case is entirely silent on the question whether race discrimination is implicit in the method of classification adopted in California. Accordingly, it devolves upon us to examine with care the reasons which have heretofore been advanced in support of alien land legislation.

One of the most persistent arguments popularly advanced in support of the validity of the restrictive provisions of the Alien Land Law is that the statute merely carries into effect a legislative policy of Congress and that the regulations established by federal law, as to who may and may not become citizens, in themselves furnish a reasonable basis for classification. This view has the effect of evading every other legal attack on the statute, for it concedes that the State law is discriminatory and shifts the blame to the federal immigration law which was enacted under the plenary power of Congress over immigration and naturalization free from the inhibitions of the Fourteenth Amendment. The argument also conveys the suggestion that the courts need not seriously concern themselves with this particular denial of fundamental rights, since Congress in due time may change its immigration policy so as to render the alien land law a dead letter.

The fallacy in the contention that the California statute merely carries a congressional policy into effect appears from a cursory examination of the two totally distinct types of legislation. Congress has enacted a naturalization law, not a property law. Congress regulates admission to citizenship, not ownership of property. Congress has neither declared nor assumed that landowners ineligible to citizenship are a danger to the state; our Legislature has so declared or assumed. The purposes and factual assumptions of the alien land law all originate in our own legislation, without direction or even suggestion from Congress. It may be noted in passing that only a small minority of states have such alien legislation, although the same immigration regulations apply throughout the country. (See 5 VERNIER, AMERICAN FAMILY LAWS, 304-346; McGovney, The Anti-Japanese Land Laws, 35 Cal.L.Rev. at pp. 21-24.)

The view that federal naturalization classifications are automatically proper for purposes of state legislation was specifically rejected in Takahashi v. Fish & Game Com., 334 U.S. 410, 420. It was there pointed out by Justice Black, speaking for a majority of the court, that the power of Congress to put racial groups in special classifications for purposes of regulating immigration and naturalization is very broad and wholly distinguishable from the power of the stateto discriminate between such groups in determining which of its residents shall have the right to acquire, enjoy, own, and dispose of property. Accordingly, if a state wishes to borrow a federal system of grouping, it must justify the adopted classification in its new setting, and the state’s use of the distinction must stand or fall on its own merits.

The state asserts that the purpose of the alien land law is to restrict the use and ownership of land to persons who are loyal and have an interest in the welfare of the state. As we shall see later, this is not the true objective of the legislation, but even if it were there is no reasonable relationship between that asserted purpose and the classification on the basis of eligibility to citizenship. Just as eligibility to citizenship does not automatically engender loyalty or create an interest in the welfare of the country, so ineligibility does not establish a lack of loyalty or the absence of interest in the welfare of the country. Nor does it follow that a person has no stake in the economic and social fortune of a state merely because the federal law denies him the right to naturalization. His American-born children are citizens, and, having made his home here, he has a natural interest, identical with that of an eligible alien, in the strength and security of the country in which he makes a living for his family and educates his children.

In determining the propriety of a classification on the basis of ineligibility to citizenship, consideration must necessarily be given to the nature of the requirements for naturalization. The Nationality Code sets forth a number of conditions in addition to racial qualifications; for example, a person is ineligible to become a citizen who cannot speak English, or does not believe in our form of government and in property rights, or has been convicted of desertion from the armed forces or evasion of the draft during war, or has not resided in the United States for a prescribed time, or is not of good moral character. (See 8 U.S.C.A. § 704 et seq.) It may be that some of these requirements for naturalization bear a reasonable relationship to the asserted purpose of singling out a class of persons who are not loyal to this country or interested in its welfare. Other requirements, however, and particularly the provisions regarding race, obviously do not constitute an accurate or reasonable method for distinguishing between loyal and disloyal persons. Likewise, even if it be assumed that there might be some justification for a statute denying rights in property to aliens who can become citizens, but who have not displayed sufficient interest in this country to seek naturalization, there can be no justification for a classification which operates to withhold property rights from some aliens, not because of anything they have done or any beliefs they hold, but solely because they are Japanese and not French or Italian. The only disqualification urged against Sei Fujii is that of race, but it may be said of him as it was said of Kumezo Kawato, “Nothing in this record indicates, and we cannot assume, that he came to America for any purpose different from that which prompted millions of others to seek our shores — a chance to make his home and work in a free country, governed by just laws, which promise equal protection to all who abide by them.”(Ex parte Kawato, 317 U.S. 69, 71.)

One of the grounds given for the decision in Terrace v. Thompson, 263 U.S. 197, 220-221, was that it was within the “realm of possibility” that all the real property in a state might pass to the ownership or possession of persons ineligible to citizenship in the absence of restrictive legislation. Whatever justification there may have been for fear of this sort in 1923, any basis for such apprehension is now entirely lacking. Changes in the naturalization and immigration laws since the Terrace and Porterfield decisions, together with other factors, have reduced that possibility to the vanishing point. (See concurring opinion of Justice Murphy, in Oyama v. California, 332 U.S. 633, 667-669.) When those cases were decided, only white persons and persons of African nativity and descent were eligible to become citizens. (Naturalization Act of 1790; 18 Stats. 318.) At the time the present proceeding was begun, in 1949, the naturalization laws had been amended to provide that the following may become citizens: “descendants of races indigenous to the western hemisphere”(8 U.S.C.A. § 703; 54 Stats. 1140, ch. 876); “any person not a citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States”(8 U.S.C.A. § 1001; 56 Stats. 182); Chinese persons and persons of Chinese descent (8 U.S.C.A. § 703; 57 Stats. 601); Filipinos and persons indigenous to India (8 U.S.C.A. § 703; 60 Stats. 416). Thus, in 1949, the California alien land law could operate only against Japanese and a small number of residents of a few other races, such as Polynesians. According to 1940 census figures, the alien Japanese population of California was 33,569. Immigration of persons ineligible to citizenship was halted by the Exclusion Act of 1924 (43 Stats. 161, 8 U.S.C.A. § 213c), hence Japanese aliens in the state in 1949 were necessarily of mature years, and their number must have been materially less than in 1940 due to death, changes of residence, deportation and other causes.

Moreover, if, as indicated in the Terrace case (263 U.S. at pp. 217-221, 44 S.Ct. at pp. 18-20), a state may properly bar all noncitizens from owning land, the method of classification here involved was not designed to bring about that result. The California statute leaves in possession and control of land many eligible aliens who have never declared their intention to seek naturalization and who have been residents for so long a time without becoming declarants that one may infer a settled purpose on their part never to become citizens.

In the foregoing discussion, we have assumed, as asserted by the Attorney General , that the purpose of the alien land law is to limit the use and ownership of land to those who are loyal to this country and have an interest in the welfare of this state. It is generally recognized, however, that the real purpose of the legislation was the elimination of competition by alien Japanese in farming California land. The argument presented in favor of adoption of the act in the 1920 voters pamphlet stated that the statute’s “primary purpose is to prohibit Orientals who cannot become American citizens from controlling our rich agricultural lands,”that “Orientals, largely Japanese, are fast securing control of the richest irrigated lands in the state,”and that “control of these rich lands means in time control of the products and control of the markets.”A former Attorney General of California declared that the basis of the alien land law legislation was “race undesirability” and that “It was the purpose of those who understood the situation to prohibit the enjoyment or possession of, or dominion over, the agricultural lands of the State by aliens ineligible to citizenship, — in a practical way to prevent ruinous competition by the Oriental farmer against the American farmer.”(See Ferguson, California Alien Land Law, 35 Cal.L.Rev. 61, 68; McGovney, Anti-Japanese Land Laws, 35 Cal.L.Rev. 7, 14, 49; State Board of Control report, “California and the Oriental”pp. 8-9, 45, 49-52.) Shortly after the statute was enacted this court recognized that the legislation was directed at the Japanese and that its purpose was to discourage them from coming into this state. (Estate of Yano, 188 Cal. 645.) Moreover, the state has enforced the law solely against persons ineligible to citizenship because of race and primarily against Japanese. (See statistics collected in concurring opinion by Justice Murphy in Oyama v. California, 332 U.S. 633, 661-662; Ferguson, California Alien Land Law, 35 Cal.L.Rev. at pp. 61, 73.) Although the prevention of agricultural competition between residents of the state might be a proper legislative objective under some circumstances, arbitrary or unreasonable means may not be used to accomplish that result, and discrimination on the basis of race, whether by the terms of a statute or the manner of its administration, is obviously contrary to the Fourteenth Amendment.

It is well established that all aliens lawfully in this country have a right “to work for a living in the common occupations of the community.”(Truax v. Raich, 239 U.S. 33; Takahashi v. Fish & Game Com., 334 U.S. 410.) Much emphasis has been placed in argument on an asserted distinction between the right to engage in common callings and the right to own or use real property, but an examination of the authorities shows that the distinction had its roots and justification solely in the ancient Common law system of feudal tenure, and it has no rational basis today. As pointed out above, the United States Supreme Court, in Takahashi v. Fish & Game Com., 334 U.S. 410, held that a California code provision denying commercial fishing licenses to persons “ineligible to citizenship”violated the equal protection clause and conflicted with the federal power to regulate immigration. It was assumed for the purposes of the Takahashi decision that one objective of the licensing law was “to protect California citizens engaged in commercial fishing from competition with Japanese aliens.”The opinion necessarily determined that such a purpose did not justify discrimination against persons ineligible to citizenship. If there is no constitutional basis for such discrimination in regard to work in “ordinary occupations,”such as commercial fishing, in what way does the identical type of discrimination become valid where the work involves, as an incident, the ownership or possession of real property?

The truth is that the right to earn a living in many occupations is inseparably connected with the use and enjoyment of land. Farming, for example, is one of the most ancient and common ways of making a living, but the rule of the Porterfield case permits a state, in the absence of treaty, to so restrict an ineligible alien resident that he can farm land only in the capacity of an employee or hired hand. (See Webb v. O’Brien, 263 U.S. 313; Frick v. Webb, 263 U.S. 326.) Moreover, under the Porterfield rule, ineligible aliens who are not protected by treaty may be restricted in following many ordinary occupations other than farming, since it is reasonably necessary to the operation of most private businesses to own or lease land upon which an office, shop or factory may be located. Legislation which results in such discrimination imposes upon the ineligible alien an economic status inferior to that of all other persons living in the state and interferes with his right to earn a living. (See Kenji Namba v. McCourt, 185 Ore. 579; concurring opinion, Palermo v. Stockton Theatres, Inc., 32 Cal.2d 53, 66-67.) As the Supreme Court of Oregon recently said, in declaring invalid an alien land law substantially the same as the California statute, “Our country cannot afford to create, by legislation or judicial construction, a ghetto for our ineligible aliens. And yet if we deny to the alien who is lawfully here the normal means whereby he earns his livelihood, we thereby assign him to a lowered standard of living.”(Kenji Namba v. McCourt, supra, 204 P.2d at p. 583.)

In the light of the foregoing discussion, we have concluded that the constitutional theories upon which the Porterfield case was based are today without support and must be abandoned. The California Alien Land Law is obviously designed and administered as an instrument for effectuating racial discrimination, and the most searching examination discloses no circumstances justifying classification on that basis. There is nothing to indicate that those alien residents who are racially ineligible for citizenship possess characteristics which are dangerous to the legitimate interests of the state, or that they, as a class, might use the land for purposes injurious to public morals, safety or welfare. Accordingly, we hold that the alien land law is invalid as in violation of the Fourteenth Amendment.

The judgment is reversed.

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Justice CARTER.
I concur in the judgment of reversal.

The sole justification of the statute barring Japanese aliens from owning or occupying property in California is that such persons will not be legal citizens familiar with American concepts and will use the property to the detriment, rather than the welfare, of the nation. Authority for that conclusion is a similar statement made by Mr. Justice Butler in Terrace v. Thompson, 263 U.S. 197, in 1923, who, in turn, took it from the decision of the judge in the lower court. There was not then, much less now, any basis for it. Regardless of what may have been the popular concept when our present immigration, naturalization and alien land laws were adopted and upheld by our courts, the trend of thought influenced by subsequent events is diametrically opposed to the philosophy underlying those laws and the decisions upholding them. The basic fallacy of the argument advanced in support of the validity of the alien land laws is in making ineligibility for citizenship the postulate of the classification of persons who are prohibited from owning land.

Mr. Justice Schauer, in his dissenting opinion, charges the majority of this court with refusal to perform its judicial duty by the rendition of its decision declaring the California Alien Land Law unconstitutional. Our decision, he says, stems “from the strong social views of the justices who write it and from their desire to make the law what they think it should be,”and is based on the conjecture that the Supreme Court of the United States “which has previously upheld the law may eventually reverse itself.”

For my part in participating in the decision, I deny the charge. I have always considered that the decisions upholding the alien land laws were based upon a false premise and that those laws were never valid because they contravened constitutional mandates. I did not join with the majority of this court in People v. Oyama, 29 Cal.2d 164, which was reversed by the Supreme Court of the United States (see Oyama v. California, 332 U.S. 633), and I dissented in Takahashi v. Fish & Game Com., 30 Cal.2d 719, which was likewise reversed by the Supreme Court of the United States (see Takahashi v. Fish & Game Com., 334 U.S. 410). I took the position when those cases were before this court that the statutes there involved violated constitutional mandates and should be stricken down. I took this position without regard to the conclusion which might finally be reached by the Supreme Court of the United States. While the majority of the Supreme Court of California upheld the statutes involved in those cases, its decisions were reversed by the Supreme Court of the United States. I can see no distinction in the disposition of those cases by this court and the case at bar. In my opinion this court has the right to say at this time that the statute here involved is unconstitutional even though the former decisions of the Supreme Court of the United States appear to have upheld it as constitutional. What conclusion that court may ultimately reach in this particular case cannot change my view with respect to what the decision of this court should be. I am fully cognizant that this position may be in conflict with the following declaration in the dissenting opinion of Mr. Justice Schauer: “Justice is pictured as being blind but not in the posture of an ostrich, and judicial duty is not performed when a court refuses to follow a law because it conjectures that a higher court which has previously upheld the law may eventually reverse itself.”Contrary to this expressed belief of Mr. Justice Schauer, it is my view that the judge who closes his mind and refuses to apply constitutional principles in the light of present day concepts confuses the ostrich which hides his head when danger approaches with the mythical Goddess of Justice whose blindfold is depicted to illustrate her impartiality and freedom from external influences.

My philosophy of the law is and always has been that it is the duty of a judge, in construing the Constitution, to give effect to its provisions and strike down legislation in contravention thereof. (Werner v. Southern Calif. etc. Newspapers, 35 Cal.2d 121, 137; Perez v. Sharp, 32 Cal.2d 711, 732; In re Blaney, 30 Cal.2d 643; Rescue Army v. Municipal Court, 28 Cal.2d 460; Gospel Army v. City of Los Angeles, 27 Cal.2d 232; County of Los Angeles v. Southern Calif. Tel. Co., 32 Cal.2d 378, 393; Palermo v. Stockton Theatres, Inc., 32 Cal.2d 53, 66; Takahashi v. Fish & Game Com., 30 Cal.2d 719, 737; Hollman v. Warren, 32 Cal.2d 351; Lockard v. City of Los Angeles, 33 Cal.2d 453, 468; Sandstrom v. California Horse Racing Board, 31 Cal.2d 401, 415; Del Mar Canning Co. v. Payne, 29 Cal.2d 380, 384; Ferrante v. Fish & Game Com., 29 Cal.2d 365, 375.)

The Constitution of the United States is the supreme law of the land and all judges take an oath to support it. In my opinion this oath is violated when courts permit laws to stand or acts to be done in conflict with its provisions. See People v. Rochin, 101 Cal.App.2d 140, 143, reversed by the Supreme Court of the United States (Rochin v. California, 341 U.S. 939).

Convinced as I am and always have been that this statute violates basic constitutional guarantees, it is my plain duty to so declare. Even conceding that the Supreme Court of the United States has not overruled Porterfield v. Webb, 263 U.S. 225, Webb v. O’Brien, 263 U.S. 313 , Frick v. Webb, 263 U.S. 326, Terrace v. Thompson, 263 U.S. 197, or Cockrill v. California, 268 U.S. 258, it has reversed this court on the only recent cases which have considered the problem here involved. Furthermore, that court has recently declared in Oyama v. California, 332 U.S. 633, at page 646: “There remains the question of whether discrimination between citizens on the basis of their racial descent, as revealed in this case, is justifiable. Here we start with the proposition that only the most exceptional circumstances can excuse discrimination on that basis in the face of the equal protection clause and a federal statute giving all citizens the right to own land. In Hirabayashi v. United States, this Court sustained a war measure which involved restrictions against citizens of Japanese descent. But the Court recognized that, as a general rule, ‘Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.’ 320 U.S. 81, 100 (1943).”The foregoing declaration is clearly out of harmony with the basic philosophy announced in the decisions of that court hereinabove cited upholding the alien land laws.

The fundamental principle enunciated by the equal protection clauses of our Constitutions , both state and federal, means equality for aliens within our country, as well as for citizens. It has both antiquity and sanctity for its background. “And if a stranger sojourn with thee in your land, ye shall not vex him. But the stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself.”(Leviticus 19:33, 34.) And recently this admonition has been fostered by the United Nations Charter as an international policy. Any curtailment of equality must necessarily, therefore, be carefully scrutinized.

After Pearl Harbor, one of the chief arguments advanced for the evacuation from California of the Japanese was, as has been expressed: “Economic practices made Japanese undesirable competitors, and their productive contribution to the nation’s economy was negligible.”(GRODZINS, AMERICANS BETRAYED, p. 401.) If the impact of the Japanese on agriculture shortly after 1941 was “negligible”– of no importance — then it cannot be said to be now so important as to justify depriving them of their constitutional rights. Indeed, even less importance now exists, for they were placed in detention camps and since their release have been widely dispersed.

In March, 1951, hearings were conducted by Subcommittees of the House and the Senate Judiciary Committees on measures revising the laws on immigration, naturalization and nationality. One of the basic features of the proposed revision was the elimination of discrimination on the basis of race for both entry of aliens into the country and their eligibility for naturalization. Many people representing various organizations testified at the hearings. Some of those organizations have heretofore actively participated in sponsoring and fostering the Alien Land Law of California. Yet no one opposed the departure from race as a basis for denying citizenship, and most of them expressly endorsed it. Although not representing any organization, Congressman Judd’s statement is typical. He said: “To me, this [the elimination of the racial discrimination] is a matter of simple justice. These people are here. They are legally here. They are entitled to stay here the rest of their lives. Their average age is above 50. They pay taxes; they are good, law-abiding members of their communities. They have proved through their conduct during the war, and especially through the conduct of their children who served with heroism, distinction, and valor in our Armed Forces, that they are loyal to the United States and fully worthy of American citizenship. From the standpoint of our own society, it would be better to have them fully incorporated as citizens than as alien residents.

“Certainly it is better to have them a part of our country than a foreign body in it. I cannot believe there can be substantial objection to allowing them to become naturalized citizens, as they want to. . . .

“I think that, both from the standpoint of our own conscience and from the standpoint of the respect we want the rest of the world to have for us, this is an injustice which should be corrected. It is merely good sense to naturalize those of that group who want to become full-fledged American citizens, as almost every one of them does. That is, everyone, so far as I know.”(Joint Hearings before the Subcommittees of the Judiciary, Congress of the United States, 82nd Congress, March 6-April 9, 1951, p. 31.)

It is clear, therefore, that there is not now and never has been any rational basis for excluding the Japanese from land ownership. Even in the field of naturalization and immigration, where Congress may act without constitutional restriction, reason appears to prevail over prejudice. Since there is no logical reason for excluding aliens from naturalization on the basis of race, there is even less reason to exclude them from land ownership when they legally reside here.

Milton R. Konvitz, Associate Professor, Cornell University, had this to say in 1946:

“The Japanese were pioneers who reclaimed the San Joaquin Valley from the desert. They turned this land ‘from its unhealthy barren state of wasteland into the richest and most productive district in the state of California.’ Through sheer perseverance they gained control of the berry, potato, flower, and truck-garden markets. Organized labor and the corrupt politicians, having put the Chinese ‘in their place,’ turned their attention to the Japanese, who became the scapegoat for every misfortune. The anti-Japanese agitation, it has been said, was predominantly motivated by economic factors; though it has been suggested that the fear of racial intermarriage was not absent.

“‘Man for man, the Japanese immigrants compared very favorably with the European immigrants of this period,’ Treat has observed. ‘They were generally literate, almost always law-abiding, industrious, and ambitious to rise in the world.’ The Chinese were hated because they were ‘servile’; the Japanese were hated because they were industrious and ambitious. The Chinese were hated because they lived in urban ghettos and worked in cities rather than on farms; the Japanese were hated because they preferred agriculture and worked on farms.

“As early as 1907 attempts were made in the California legislature to pass Bills to drive the Japanese from the land (and ultimately from California). Owing to the efforts of President Theodore Roosevelt the Bills did not then pass. The animus of the persons behind this anti-Japanese drive in the state legislature is well illustrated by the following passage from an address by one of them: ‘I would rather,’ he told an audience, ‘every foot of California was in its native wilderness than to be cursed by the foot of these yellow invaders, who are a curse to the country, a menace to our institutions, and destructive of every principle of Americanism. I want no aliens, white, red, black or yellow to own a foot of land in the State of California.’ . . .

“The facts show that there is no relationship between the character of the Japanese in the United States and the prohibition on ownership of land by them, in so far as concerns the public health, morals, or welfare. The record of the Japanese in California is today an open book, and anyone who wants may read it. The record shows them to have been a law-abiding group, loyal to American political institutions, industrious, economically self dependent. They have not used the soil of California to plant in it mines to blow California to the heavens; they used it for the cultivation of vegetables and berries which were the delight of the consumer. They offered economic competition to members of the white race; but can the law be used to compel a racial group to give up its habits of industry and skills, and fundamental human rights, and assume a position of economic and social dependence?

“The Supreme Court has said that the differentiation between aliens eligible for citizenship and ineligible aliens is a rational one, for the ineligibles cannot be assumed to have a great interest in the welfare of the people. The facts concerning the Japanese and Chinese and other Asiatics in this country do not bear out this judgment of the court. These people have never hindered the development of our national policy in the furtherance of the public welfare; they have built railroads for us; they have made berries grow where thistles grew before; they have contributed less than their ‘quota’ to our prison population. Despite economic handicaps, and placement in positions of social inferiority, they have managed to shift for themselves without leaning on others. How, then, can it be said that their ineligibility for citizenship is a rational justification for depriving them of fundamental human rights?”(KONVITZ, THE ALIEN AND THE ASIATIC IN AMERICAN LAW, pp. 157, 168.)

Eugene V. Rostow, Professor of Law, Yale University, with comprehensive citations of scientific authority has this to say: “. . . the Supreme Court’s doctrine of ethnic disloyalty belongs with folk proverbs — ‘blood is thicker than water’ — and the pseudo-genetics of the Nazis. It is flatly contradicted by the evidence of the biological sciences, of cultural anthropology, sociology, and every other branch of systematic social study, both in general, and with specific reference to the position of Japanese groups on the West Coast. The most important driving urge of such minority groups is to conform, not to rebel. This is true even for the American minorities which are partially isolated from the rest of society by the bar of color. The desire to conform is stronger than resentments and counter-reactions to prejudice and discrimination. Insecure and conscious of the environment as a threat, such minorities seek to establish their status by proving themselves to be good Americans.”(54 Yale L.J., 489, 506.)

The late Dudley O. McGovney, Professor of Law, University of California, made a searching analysis of the entire problem in 1947, and said:

“In what respect does the ownership of some of the farm lands in a state by persons who owe no allegiance to the United States affect the safety of a state, either in time of peace or of war? Has this ancient idea by which early English law writers rationalized the exclusion of all but the King’s subjects from certain feudal land tenures any validity in our time? Tenure by knight service, or military tenure, was then conceived of as something that none but persons under allegiance to the King might owe. But ‘by the end of the thirteenth century, tenure by knight service had ceased to provide either soldiers or their pay.’ Maitland says that if it had been abolished in 1300 the military strength of the realm would have been unaffected. When the statute of 1660 completely abolished military tenure it was merely clearing away what had long been a dead letter so far as military service was concerned. A connection between tenure and military service had existed only in theory when Coke saw ‘destruction of the realm’ in landholding by aliens. In our time liability to military service is not dependent upon allegiance. Resident aliens are now subjected to compulsory military service even in international warfare, and nothing but legislative policy exempts enemy aliens. An alien is not exempt from draft because he owns farm land. So also Coke’s Trojan-horse idea, that aliens owning land ‘might fortify themselves in the heart of the realm,’ never had any validity in the United States, certainly not since 1798. Congress then passed a statute, ever since in force, authorizing the arrest, confinement, or removal of enemy aliens in wartime. It also authorized the President ‘to direct the conduct to be observed, on the part of the United States, toward’ enemy aliens. During the war of 1812 with Great Britain, orders by the President and other officials acting under his authority directed all British nationals, fourteen years of age and over, residing within forty miles of tidewater to surrender to United States marshals and be retired further into the interior of the country or to be kept in close confinement. . . .

“The fact that an enemy alien owns farm lands in nowise affects his liability to evacuation. Indeed the ownership of any property by an enemy alien in the United States is an asset to us, rather than a liability or a handicap, in view of the authority given the Alien Property Custodian to seize it, hold it, sell it or otherwise deal with it in the interest, and for the benefit, of the United States.

“Coke’s Trojan-horse now lives only in Law books or in the minds of persons who unthinkingly accept antiquated ‘reasons’ for the ancient discrimination that the Common law made against aliens with respect to landholding.

“Turning to peacetime, how does alien landholding then affect the safety of the state? I think the complete answer was given to that question by Chief Justice Redfield of Vermont in 1853. The question before the Vermont supreme court was whether the common law against landholding by aliens had been received, or had survived, in the state, and in particular whether Vermont law contained any procedure for the forfeiture of estates of aliens. The court held ‘no,’ the Chief Justice saying, ‘it must, I think, be regarded as questionable how far any such procedure could ever be enforced, for the mere purpose of escheating to the State the lands of a quiet resident or non-resident alien, in time of profound peace, where no danger was apparent, imminent, or even remotely threatened.’

“If the allegiance of farm owners is of ‘highest importance’ and the alienage of farm owners affects the safety of the state, the legislators of forty-one of our states are lacking in statecraft, for by their laws the allegiance of those who own farm lands is regarded as of no significance whatever. Rightly included in the forty-one states are the nine ‘ineligible alien’ land law states for they also regard the allegiance of landowners of no significance except in case of the small numbers of aliens racially ineligible to naturalization. So California lawmakers see no reason for denying to a half million alien residents the privilege of owning land without limit, though denying that privilege to less than thirty thousand other alien residents because of their race.

“. . . Even if the allegiance of farmers had significance why is it of significance with respect to the less than thirty thousand ‘ineligible aliens’ in California but of no significance with respect to a half million other aliens in California who may never seek or acquire citizenship? Moreover, the statement smacks of Coke’s exaggeration when he said that if aliens could hold land in England, there would not be enough British freeholders to man the juries. If all the ‘ineligible aliens’ in California were to exhaust themselves in share cropping, there would be millions of acres of farm lands left for the citizens and other aliens. The same exaggeration is found in a statement with which Justice Butler said he agreed: ‘If one incapable of citizenship may lease or own real estate, it is within the realm of possibility that every foot of land within the state might pass to the ownership or possession of non-citizens.’ Even if that were a possibility the evil inherent therein is not specified. . . .

“If some evil condition in farming existed in any state, the state might set up a licensing system for farmers and prescribe qualifications deemed essential to overcome the evil, and the Supreme Court would doubtless pay deference to the local judgment on the rationality of the discrimination made thereby. Thus if tillable land were scarce in California relative to the food needs of her population, the state might prescribe qualifications for farming that would exclude all not well qualified as productive operators. If such was the purpose of the California law it fits ill with the fact that the chief charge against ‘ineligible aliens,’ and the Japanese in particular, was that they were especially skillful and unduly industrious — particularly in intensive cultivation, involving hard personal labor. It would take a high degree of judicial deference to local judgment to believe that Japanese were the worst offenders in nonproductivity.”(Italics added.) (35 Cal.L.Rev. 7, 39.)

Further, it has been said:

“They [the Japanese] possessed a remarkable knowledge of soils and of how to treat soils for the production of certain crops; an expert knowledge of the use of fertilizers and of fertilizing methods; a great skill in land reclamation, irrigation, and drainage; and a willingness to put in the enormous amount of labor required in intensive farming operations. They pioneered in the production of many crops. They reclaimed vast areas of the West, including the cut-over timber lands of the Northwest and the valuable delta lands in California. . . . the San Francisco Chronicle readily conceded that ‘the most striking feature of Japanese farming in California has been the development of successful orchards, vineyards, or gardens on land that was either completely out of use or employed for far less profitable enterprises.’

“It was George Shima, an immigrant, who taught the Californians how to develop a good potato seed. It was Japanese farmers who developed berry production in the West by increasing the yield four or five times over what it had been (planting strawberries and grapevines at the same time so that when the strawberries were replanted three years later a profitable vineyard would be in production). It was the Japanese who took over the semi-abandoned community of Livingston and made it a profitable farming area, and who succeeded in the mountain-fruit section in Placer County after other groups had failed. ‘In the Imperial Valley and the Delta country,’ observed Robert Welles Ritchie, ‘the Japanese never displaced white men, for white men would not work there; and in the mountain fruit district, the Chinese and after them the Japanese came in, after nearly every white man had quit, and made a go of a crippled industry.’ In later years the Californians contended that the Japanese were monopolizing the best lands; but candor should have compelled the admission that most of these lands were originally marginal in character.

“. . . Their most important contribution to the economy of the West, however, was the manner in which they organized produce production on a year-round basis so as to provide a steady flow of produce to the markets.”(MCWILLIAMS, PREJUDICE, p. 79.)

Author: international

Mentioned in these Entries

Attorney General, Bills, Common law, Constitutions, Due Process, Sei Fujii v. the State of California, State law, Treaties, United States Supreme Court, country.