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Illinois, 116 U. S. 252, 29 L. ed. 615, 6 Sup. Ct. Rep. 580; Ex parte Luening, 3 Cal. App. 76, 84 Pac. 445; State v. Reid, 1 Ala. 612, 35 Am. Dec. 44; State v. Mitchell, 3 Blackf. 229; Wright v. Com. 77 Pa. 470; State v. Shelby, 90 Mo. 302, 2 S. W. 468.

The state through its police power may regulate the conduct of aliens.

Com. v. Patsone, 231 Pa. 46, 79 Atl. 928, 232 U. S. 139, 58 L. ed. 539, 34 Sup. Ct. Rep. 281; Central Lumber Co. v. South Dakota, 226 U. S. 157, 57 L. ed. 164, 33 Sup. Ct. Rep. 66; Barrett v. Indiana, 229 U. S. 26, 57 L. ed. 1050, 33 Sup. Ct. Rep. 692; Adams v. Milwaukee, 228 U. S. 572, 57 L. ed. 971, 33 Sup. Ct. Rep. 610; People v. Crane, 165 App. Div. 449, 150 N. Y. Supp. 933, reversing Heim v. McCall, 88 Misc. 291, 150 N. Y. Supp. 492; Hubbard v. Goodwin, 3 Leigh, 492; People v. Finley, 153 Cal. 60, 94 Pac. 248.

Messrs. U. S. Webb, Attorney General, and W. F. Cleary also for respondent.

Messrs. J. J. Henderson and B. P. Tabor, amici curiæ.

Lawlor, J., delivered the opinion of the court:

On application of his attorneys, a writ of habeas corpus was issued on behalf of Gevino Rameriz, whom we shall refer to as petitioner. The record before us shows that he was charged, tried, and convicted in Kings county, and sentenced to serve a term of from one to five years in the state prison at San Quentin for violation of a new statute (Stat. 1923, p. 695) in having on and about his person and in his possession a certain automatic revolver about 4 inches in length, of 25 caliber, and loaded with powder and ball, the petitioner then and there being an unnaturalized foreign-born person. After judgment was pronounced, a certificate of probable cause was issued pending appeal, and at the time of the issuance of the writ the petitioner was in the custody of respondent, W. J. Hime, sheriff of Kings county.

The petitioner was charged under § 2 of the said statute, which reads as follows:

"On and after the date upon which this act takes effect, no un

naturalized foreign-born person and no person who has been convicted of a felony against the person or property of another or against the government of the United States or of the state of California or of any political subdivision thereof shall own or have in his possession or under his custody or control any pistol, revolver or other firearm capable of being concealed upon the person. The terms 'pistol,' 'revolver,' and 'firearms capable of being concealed upon the person' as used in this act shall be construed to apply to and include all firearms having a barrel less than twelve inches in length. Any person who shall violate the provisions of this section shall be guilty of a felony and upon conviction thereof shall be punishable by imprisonment in a state prison for not less than one year nor for more than five years."

It is contended that this statute is unconstitutional (a) in that it violates the 14th Amendment of the Constitution of the United States, (b) because it violates article 2 of the Amendments of the Constitution of the United States, and (c) for the reason that it violates § 17, article 1, of the Constitution of the state of California.

(a) It is contended that this statute violates the 14th Amendment of the Federal Constitution, in that it denies to aliens the equal rights and protection of the laws. In other words, that aliens have been unjustly discriminated against within the meaning of the 14th Amendment. It is argued on behalf of the petitioner that the deprivation of the right to unnaturalized foreignborn persons to have the possession of such firearms as are described in the statute is an unconstitutional exercise of the police power of this state. It is admitted by amici curiæ that the legislature has the unquestioned power to enact, as a proper police regulation designed to promote the public safety and welfare, a law absolutely prohibiting any and all persons within its jurisdic

(Cal. - 226 Pac. 914.)

tion the possession or use of weapons of the character described in the act under consideration, but "that so long as the legislature expressly recognizes the class of firearms described in § 2 of the act as the subject of property, ownership, and possession by citizens of the United States, it cannot deny to resident foreigners the absolute right to acquire and own, and, as a corollary to such ownership, the right to possess, under proper regulation, firearms of the same description."

Respondent does not claim that the protection of the 14th Amendment does not extend to aliens within the territorial jurisdiction, but contends that within the exercise of the police power they may be classified for purposes of legislation. It is argued, on the other hand: Firstly, that unlawful discrimination is shown in the proviso contained in § 6, that nothing in § 5 "shall be construed to apply to or affect sheriffs... nor to the possession or transportation by any merchant of unloaded firearms as merchandise," and that, consequently, "no unnaturalized foreign-born merchant who happens to be engaged in business in the state of California is permitted to possess or transport a certain kind of property if it consists wholly or partly of firearms capable of being concealed on the person." Secondly, it is argued: "There is no provision in the law whereby an unnaturalized foreignborn person, no matter what his status may be, can secure a license or permit to own or possess any firearms or stock in trade consisting of firearms. The mere fact that he is an unnaturalized foreigner absolutely precludes him from owning or possessing this species of property.. . Interpreted according

to their ordinary signification, the words of the statute prohibit even the owning by an unnaturalized foreigner of any firearms capable of being concealed on the person. other words, every unnaturalized foreign-born person, resident of the

state of California, was required, the instant this statute took effect, to rid himself of the ownership of any such firearm which he theretofore owned, and was prohibited from acquiring the ownership of any such firearm in the future."

Petitioner further complains in his brief that § 5 of the act, which makes it a misdemeanor only for any person to carry such weapons as are described without a license, is added evidence of unlawful discrimination. The following is quoted from the brief: "A penal statute which makes arbitrary distinctions between different persons or classes of persons, either by making certain acts criminal offenses when committed by some persons but not when committed by others, or by prescribing different penalties for the commission of the same acts by different persons, has been declared unconstitutional as class legislation. Peonage Cases (D. C.) 123 Fed. 671; 12 C. J. 1141."

The attorney general contends that the legislation does not violate the equal protection clause of § 1 of the 14th Amendment, and cites § 1, article 19, of the state Constitution, that "the legislature shall prescribe all necessary regulations for the protection of the of the state,

from the burdens and evils arising from the presence of aliens who are or may become criminals,

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and from aliens otherwise dangerous or detrimental to the well-being or peace of the state, as additional authority for such legislation is contained in § 2 of the act in question. We quote: "It also appears to us that in order to hold the act in question unconstitutional, it will be necessary for this court to hold that § 1 of article 19 of our state Constitution violates the equal protection clause of the 14th Amendment to the Constitution of the United States."

Petitioner has cited a number of authorities to the effect that certain statutes and ordinances which dis

criminated against aliens were repugnant to the 14th Amendment: Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Truax v. Raich, 239 U. S. 33, 60 L. ed. 131, L.R.A.1916D, 545, 36 Sup. Ct. Rep. 7, Ann. Cas. 1917B, 283; Re Tiburcio Parrott (C. C.) 6 Sawy. 349, 1 Fed. 481; and Opinion. of Justices, 207 Mass. 601, 34 L.R.A. (N.S.) 604, 94 N. E. 558. In the Yick Wo Case a municipal ordinance to regulate public laundries, and requiring the consent of the board of supervisors to their establishment when the building was not made of brick and stone, was held unconstitutional, and not a valid exercise of the police power, for the reason that it allowed arbitrary and unjust discrimination to be made by such board, founded on differences of race, between persons otherwise in similar circumstances. In Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 6 Sup. Ct. Rep. 1064, the ordinance fixing certain hours when laundries were not to be operated was held to be a reasonable police regulation. Truax v. Raich, 239 U. S. 33, 60 L. ed. 131, L.R.A.1916D, 545, 36 Sup. Ct. Rep. 7, Ann. Cas. 1917B, 283, dealt with a statute which required that employers employ only a specified number of alien employees, and fixing a penalty. The statute was declared unconstitutional as involving the right to earn a livelihood. Re Tiburcio Parrott, 6 Sawy. 349, 1 Fed. 481, involved an article of the state Constitution which authorized restrictive legislation relating to the employment of Chinese. It was held invalid as violative of the 14th Amendment, and not within the police power of the state. A criminal statute in Opinion of Justices, supra, attempted to prevent Chinese from admitting into hotels and restaurants conducted by them, or their serving with food and drink therein, girls under the age of twenty-one years.

It was held such restrictions denied to per

sons of the Chinese race the equal protection of the laws. The case of Com. v. Hana, 195 Mass. 262, 11 L.R.A. (N.S.) 799, 122 Am. St. Rep. 251, 81 N. E. 149, 11 Ann. Cas. 514, also cited by petitioner, held a statute which required that a license as a hawker and peddler shall be granted only to a person who is or has declared his intention to become a citizen of the United States, a valid exercise of the police power. The following cases are cited as instances of the denial of the equal protection of the laws: Pearson v. Portland, 69 Me. 278, 31 Am. Rep. 276; Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930; Strauder v. West Virginia, 100 U. S. 303, 25 L. ed. 664, 3 Am. Crim, Rep. 515; McCabe v. Atchison, T. & S. F. R. Co. 235 U. S. 151, 59 L. ed. 169, 35 Sup. Ct. Rep. 69; Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604; Re Kotta, 187 Cal. 33, 200 Pac. 957; St. Louis Southwestern R. Co. v. Arkansas, 235 U. S. 350, 59 L. ed. 265, 35 Sup. Ct. Rep. 99. In Pearson v. Portland, supra, a statute which precluded the recovery by a nonresident of damages for injury to person or property under circumstances sanctioned by another state law if a similar remedy was not provided in the place of residence of the injured party was held to deny him the equal protection of the laws. Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930, involved a state electrocution law. The court held that no Federal question was presented because the due process clause of the 14th Amendment has reference to the law of the land in each state, and so long as the law is equal in its operation it does not violate due process. The legislation in Strauder v. West Virginia, 100 U. S. 303, 25 L. ed. 664, 3 Am. Crim. Rep. 515, which denied to negroes the right and privilege of participating in the administration of the laws as jurors, was held unconstitutional under the 14th Amendment, as being a discrimination against negroes on account of

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(Cal. 226 Pac. 914.) race and color. In McCabe v. Atchison T. & S. F. R. Co. 235 U. S. 151, 59 L. ed. 169, 35 Sup. Ct. Rep. 69, a statute requiring separate, but equal, accommodations on railways for white and African races, was held not to be an infraction of the equal protection clause of the 14th Amendment. In Pasadena v. Stimson, 91 Cal, 238, 27 Pac. 604, it was held that a statute which required cities of the fifth and sixth classes to make an effort to agree with the owners of land sought to be condemned before instituting condemnation proceedings was a special law making a forbidden discrimination against two classes of municipal corporations, and denying them the equal privileges with other cities in the exercise of the right of eminent domain. Re Kotta, 187 Cal. 33, 200 Pac. 957, was a case where a statute imposed a poll tax upon unnaturalized foreigners. This was held unconstitutional on the ground that the enforcement would deprive the persons so burdened of the equal protection of the laws guaranteed by the 14th Amendment. In St. Louis Southwestern R. Co. v. Arkansas, supra, a statute imposed an annual franchise tax upon the right to exist as a corporation, and the court said it was not within the 14th Amendment, since nothing therein prevents double taxation or any other form of unequal taxation so long as the inequality is not based on arbitrary distinctions. The following cases are cited as instances where statutes deprived persons of property without due process of law: In Stimson Mill Co. v. Braun, 136 Cal. 122, 57 L.R.A. 726, 89 Am. St. Rep. 116, 68 Pac. 481, the statute provided that mechanics' liens, except as to contractors, be payable in money: Coppage v. Kansas, 236 U. S. 1, 59 L. ed. 441, L.R.A.1915C, 960, 35 Sup. Ct. Rep. 240, a statute making it unlawful for an employer to require an employee to agree not to become a member of any labor organization during the time of em

ployment; Hannah v. People, 198 Ill. 77, 64 N. E. 776, dealt with restrictions on the conduct of public warehousemen; in Missouri V. Lewis (Bowman v. Lewis) 101 U. S. 22, 25 L. ed. 989, a constitutional amendment and state statute adjusted the appellate jurisdiction of the courts in the various counties of the state, and this was held not to violate any provision of the 14th Amendment; Rathbone v. Wirth, 150 N. Y. 459, 34 L.R.A. 408, 45 N. E. 15, held that certain legislation which made party affiliation a requisite to eligibility to an office violated the state Constitution. The following cases cited by petitioner involved the police power of the states: Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273, held that a state statute prohibiting the sale of intoxicating liquor did not violate the 14th Amendment, as that guaranty does not deprive the states of any police. power; Lochner v. New York, 198 U. S. 45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539, 3 Ann. Cas. 1133, a law which fixed the hours of labor in a bakery was held unconstitutional as not constituting a valid exercise of the police power, the health of the individual following the occupation not being jeopardized by the employment in question; in Lacey v. Palmer (Ex parte Lacy) 93 Va. 159, 31 L.R.A. 822, 57 Am. St. Rep. 795, 24 S. E. 930, a statute regulating pool selling was held to be within the police power of the state; Ex parte Hayden, 147 Cal. 649, 1 L.R.A. (N.S.) 184, 109 Am. St. Rep. 183, 82 Pac. 315, passed on a statute requiring all fruit shipped to be labeled with the county and locality where grown; held, an unconstitutional invasion of liberty, and not a proper exercise of the police power under the guise of a health regulation; Eubank v. Richmond, 226 U. S. 137, 57 L. ed. 156, 42 L.R.A. (N. S.) 1123, 33 Sup. Ct. Rep. 76, Ann. Cas. 1914B, 192, involved a municipal ordinance requiring the establishment of building lines on the re

quest of two thirds of the owners of abutting property. It was held the ordinance did not constitute a valid exercise of the police power, as it could not serve the public safety, convenience, or welfare. It will serve no purpose to discuss Title Guarantee & T. Co. v. Garrott, 42 Cal. App. 152, 183 Pac. 470, and Ex parte Bailey, 155 Cal. 472, 31 L.R.A. (N.S.) 534, 132 Am. St. Rep. 95, 101 Pac. 441.

.

While

our nation and our people.
such a danger may seem improbable
at the present time, yet, in time of
war, it becomes a very real danger
indeed, particularly as a few thou-
sand organized aliens, in the course
of a few hours, could so cripple our
basic industries and our transporta-
tion facilities as to make us practi-
cally powerless in conducting war.
On the other hand, fire-
arms, and particularly
and particularly firearms
capable of being concealed upon
the person, are capable of being put
into active and immediate use.
Thus, even though the pos-
session of firearms by any person
may be harmful to the public wel-
fare, yet, as the possession of such
weapons by an aliens is doubly
harmful,
it is within the
province of the legislature to con-
fine its restrictions to aliens." (2)
Here follows an argument in favor
of the legislation, giving illustra-
tions of the need of guarding
against aliens, which concludes
thus: "There is yet another reason
for the classification,-the addition-
al difficulty in apprehending and se-
curing evidence against aliens."

The foregoing authorities have been described somewhat in detail by way of making clear their inapplicability to the legislation here involved. In other words, we have found nothing in any of them that supports the contention that § 2 of the act is violative of the 14th Amendment. Correct principles are stated as applied to the legislation to which these cases were addressed, and they furnish the tests by which the constitutionality of legislation may be determined under the 14th Amendment, but there were involved in none of them the subjects of public peace, public safety, public security, or collateral subjects, as affected by the possession of firearms. One of these tests is whether the legislation comes within the police power, and several of the cases are authority for the proposition that the 14th Amendment was not "designed to interfere with the power of the state sometimes termed its police power.

Barbier v. Connolly, 113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 359. The precise question presented here is whether § 2 is a valid exercise of the police

power.

Respondent urges that the legislation represents a proper exercise of the police power for the reason that it tends to safeguard the public peace and security. The argument is twofold: (1) Allegiance to the government, that is, the "danger of permitting aliens to arm themselves, and thus place themselves in a position to dispute, with force of arms, the sovereignty of

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Amici curiæ for respondent makes a similar argument, and concludes that the classification is not unreasonable.

Among the cases relied upon by respondent are Patsone v. Pennsylvania, 232 U. S. 139, 58 L. ed. 539, 34 Sup. Ct. Rep. 283, and State v. Rheaume, 80 N. H. 319, 116 Atl. 758. The former case upheld the constitutionality of an act which made it unlawful for any unnaturalized foreign-born resident to kill any wild bird or animal except in defense of person or property, and "to that end" made it unlawful for such foreign-born person to own or be possessed of a shotgun or rifle. It is sought on behalf of petitioner to distinguish this case on the ground that the decision "seemed to hinge upon the provisions of the act, and especially of the phrase 'to that end,' that is, to the protection and preservation of wild game." It

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