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226 Pac. 914.) is claimed the Federal court did not was applied in Miller v. Wilson, 236 squarely decide the question of U. S. 373, 59 L. ed. 628, L.R.A. whether or not ownership of shot- 1915F, 829, 35 Sup. Ct. Rep. 342, guns and rifles by foreigners could where a California statute limitbe prohibited for other purposes, ing hours of employment of women and the following excerpt from the in specified occupations, including opinion is quoted: “It will be time those in hotels, was upheld. The enough to consider whether the court said: “Dealing with practistatute can be construed or upheld cal exigencies, the legislature may as precluding Italians from possess- be guided by experience. ing a stock of guns for purposes of
It is free to recognize degrees of trade when such a case is presented. harm, and it may confine its reThe act was passed for an object strictions to those classes of cases with which possession in the way of where the need is deemed to be trade has nothing to do and well clearest.
If the law premight be interpreted as not extend- sumably hits the evil where it is ing to it."
most felt, it is not to be overthrown Concerning the question of dis- because there are other instances to crimination, the decision in Patsone which it might have been applied." v. Pennsylvania, supra, declared: State v. Rheaume, supra, sus"The discrimination undoubtedly tained as constitutional a statute represents a more difficult question. quiring persons not citizens of the But we start with the general con- United States to make application sideration that a state may classify for a permit to possess firearms. with reference to the evil to be pre- Petitioner, referring to the differvented, and that if the class dis- entiation in the respective statutes criminated against is or reasonably as regulatory and prohibitory, says: might be considered to define those “It will be noticed that in two esfrom whom the evil mainly is to be sential respects it is radically differfeared, it properly may be picked ent from the California law. In the out. A lack of abstract symmetry first place, no attempt is made to does not matter. The question is a deny to foreign-born residents of practical one dependent upon ex- the state of New Hampshire the perience. The demand for symme- right to acquire or own property in try ignores the specific difference firearms; and, in the second place, that experience is supposed to have no attempt is made to prohibit such shown to mark the class. It is not unnaturalized foreign-born resienough to invalidate the law that dents from possessing such firearms, others may do the same thing and provided they comply with certain go unpunished, if, as a matter of regulations and procure permits fact, it is found that the danger is therefor.
From the forecharacteristic of the class named. going it will be seen that the New
The question therefore Hampshire law merely regulates narrows itself to whether this court the possession and use of firearms. can say that the legislature of Penn- It makes no attempt to deny to anysylvania was not warranted in as- one, resident within the state, the suming as its premise for the law right to acquire or own property in that resident unnaturalized aliens such firearms. It does not even were the peculiar source of the evil prohibit the possession of firearms that it desired to prevent.
by foreigners, but merely provides Obviously the question so stated is that any foreigner desiring to posone of local experience on which sess the same shall first submit to this court ought to be very slow to
certain regulations and procure a declare that the state legislature permit for such purpose. The law, was wrong in its facts."
moreover, makes no attempt to diswell-established principle turb the ownership of firearms by
any class of persons who owned the are proper subjects of regulation same at the time the law took ef- is self-evident. The legislature was fect. The California law, on the dealing with subject matters of other hand, at its very inception, great inherent danger to the public. seeks to deprive persons who owned
It was an incident to such firearms at the time of such enact- a system that a classification should ment, of their property in such fire- be made based on domicil, allearms. In this phase it is retroac- giance, duty, habit, temperament, tive in its effect, and unquestion- and other characteristics which disably deprives persons resident in tinguish the citizen and applicant the state of California of their for citizenship from the alien who property without due process of has manifested no desire or intenlaw. Under no
circum- tion to bind himself to support the stances does it permit any un- government. naturalized foreigner either to own “Citizens as a class have more or possess a firearm or firearms of settled domicils, and are better the description denounced by the known to the local police officials, statute, and, in this respect, it un- while the sojourn of aliens in this justly, oppressively, and without country, in theory, and usually in reason, deprives the class of the practice, is temporary, and their population of the rights guaranteed abode, while here, capricious and them by the Federal Constitution.” uncertain. Citizens by means of
The point to that case is not taxation bear the expense of the whether the legislation was merely government and of police protecregulatory or prohibitory. It is tion, while the alien does not necesconceded by amici curiæ for peti- sarily pay taxes or share any part tioner that firearms are the proper of the public burden. Native citisubject of the exercise of the police zens are justly presumed to be impower. The question presented
bued with a natural allegiance to here is whether, in the exercise of their government which unnaturalthe police power, the segregation of
ized foreigners do not possess. The aliens constitutes an unlawful dis- former inherit a knowledge and crimination against that class. It reverence for our institutions, while was said in State v. Rheaume, su- the latter as a class do not underpra:
stand our customs or laws, or enter “Classifications distinguishing be- into the spirit of our social organitween citizens and aliens have not zation. Or, passing more directly infrequently been the basis of regu- to the use of firearms, the citizen lations under the police powers of
has an obligation to defend the the states.
state, while the alien has none. The “Aliens are under no special con
citizen is required to assist in stitutional protection which forbids maintenance of order, the enforcea classification otherwise justified
ment of law, and the arrest of simply because the limitation of the wrongdoers in some instances. It is class falls along the lines of nation- clear that there exists a reasonable ality. That would be requiring a
and substantial basis for the classihigher degree of protection for fication.” aliens as a class than for similar
Moreover, it is not strictly true classes of American citizens.
that the legislation here in quesIt therefore remains to be consid
tion is prohibitory to every class of ered whether there is such a rela
firearms. Under the statute aliens tion between the restriction as to may own or have in their possesthe alien and the public safety as to sion firearms, provided they are not warrant the classification in the of a size capable of being concealed present case.
on the person. This would permit "That explosives and firearms aliens to have shotguns, rifles, or
(- Cal. 226 Pac. 914.) other large weapons for all lawful into this state. Petitioner conpurposes.
tended that as the above section did The case of People v. Crane, 214 not prohibit the sale of deer meat N. Y. 154, L.R.A.1916D, 550, 108 N. lawfully taken without the state the E. 427, Ann. Cas. 1915B, 1254, ap- charge did not come within the proves a similar classification of terms thereof. It was also argued aliens. The statute there, known that the act violates the Constituas the New York Labor Law tion of the United States in that it (Consol. Laws, chap. 31), provided is an attempt to regulate interstate that in the construction of public commerce. It was held in dischargworks by a state, municipality, or ing the writ and remanding the by contractors, only United States prisoner that it is within the police citizens shall be employed, and that power of the state, in the proteccitizens of the state should be given tion of the wild game thereof, to preference. Numerous cases are
prohibit the sale of the meat of any cited therein in which the power of wild game within the state, and that a state to descriminate in favor of such a police regulation making it citizens was sanctioned. Among a public offense to buy and sell deer these are McCready v. Virginia, 94 meat within the state, which was U. S. 391, 24 L. ed. 243, where a cut from an entire carcass brought state denied to aliens, and even to from without the state, is not a viocitizens of another state, the right lation of the Constitution of the to plant oysters or to fish in public United States as an attempt to reguwaters, and Geer v. Connecticut, late interstate commerce. “The fact 161 U. S. 519, 40 L. ed. 793, 16 Sup. that a regulation may incidentally, Ct. Rep. 600, where the state re- and to a certain extent, affect comstricted to its own citizens the en- merce between the states, does not joyment of its game. The principle affect its validity.
The authat justified the discrimination in thority of Congress over any article all these cases was held to be “that of commerce imported into a state the common property of the state ceases 'when the importer has so belongs to the people of the state, acted upon it that it has become inand hence that in any distribution corporated and mixed up with the cf that property, the citizer. may be mass of property in the country, preferred.” It was said in People which happens when the original v. Crane, supra: “If the calling is package is no longer such in his one that the state, in the exercise of hands,' and that thereupon the propits police power, may prohibit either erty becomes subject to the jurisdicabsolutely, or conditionally by the tion of the state, and affected and exaction of a license, the fact of controlled by its regulations." alienage may justify a denial of the A classification of aliens has been privilege.
There must, how- made with respect to procuring a liever, be some relation in such cases cense to hunt and fish upon paybetween the exclusion of the alien ment of a fee. The Statutes of and the protection of the public 1909, page 663, amending a similar welfare.”
act (Stat. 1907, p. 247), require In Ex parte Maier, 103 Cal. 476, every
the state, who 42 Am. St. Rep. 129, 37 Pac. 402, a hunts, pursues, or kills any of the writ of habeas corpus was issued. wild birds or animals, excepting The petitioner was held in custody predatory birds or animals, to first on a complaint charging him with a procure a license therefor. A li. misdemeanor under § 626 of the Pe- cense to citizens of the United nal Code in unlawfully selling a
States and resident in this state quantity of deer meat, the meat may be issued on the payment of having been cut from the carcass of $1; to any citizen of the United a deer killed in Texas and brought States, and not a resident of this state, on the payment of $10; to any United States, or to those who have person not a citizen of the United declared their intention to become States, upon the payment of $25. citizens, it can hardly be said that In the Statutes of 1919, p. 119, a they have exceeded their constitufurther classification was made al- tional right in passing a law to that lowing a license to be issued to a effect.
Indeed, the nature person who shall have declared his of their business is such that their intention to become a citizen of the possession of a domicil and citizenUnited States and who is a resident ship in this country might be imof this state, on the payment of $10, portant to those seeking remedies provided that the applicant take an for wrongs done in their business.” oath that he has not claimed his Terrace v. Thompson, 263 U. S. citizenship in a foreign country as a 197, 68 L. ed. 255, 44 Sup. Ct. basis for avoiding service in the Rep. 15, involved the Alien Land armed forces of the United States. Law of the state of Washington Fishing licenses, by Statutes 1913, (Laws 1921, chap. 50), prohibiting p. 986, may be granted to citizens the purchase or lease of land by any and residents of this state on the alien who has not declared his intenpayment of $1; to citizens of the tion to become a citizen. In holdUnited States and not residents of ing that the legislation was not rethis state, on the payment of $3; pugnant to the 14th Amendment, and to persons not citizens of the the court approved the following United States, on the payment of statement from the decision of the $3. We do not find that these pro- district court in that case (274 Fed. visions have been made the subject 841): of attack on the point of differentia- “It is obvious that one who is not tion in the amount of the fee re- a citizen and cannot become one quired.
lacks an interest in, and the power In Com. v. Hana, 195 Mass. 262, to effectually work for the welfare 11 L.R.A.(N.S.) 799, 122 Am. St. of, the state, and, so lacking, the Rep. 251, 81 N. E. 149, 11 Ann. Cas. state may rightfully deny him the 514, in holding constitutional that right to own and lease real estate part of the act which provided that within its boundaries. If one ina license as a hawker and peddler capable of citizenship may lease or shall be granted only to a person own real estate, it is within the who is, or shall have declared his realm of possibility that every foot intention to become, a citizen of the
of land within the state might pass United States, and referring to to the ownership
of nonState v. Montgomery, 94 Me. 192, citizens." 80 Am. St. Rep. 386, 47 Atl. 165, 15 In Porterfield v. Webb, 263 U. S. Am. Crim. Rep. 117, which declared 225, 68 L. ed. 278, 44 Sup. Ct. Rep. a similar statute unconstitutional, 21, the court considered the right of the court said: “There is, however, a citizeri to lease his land to a Japan important question which was anese subject under the Alien Land not much discussed in that case, Law of this state (Stat. 1921, p. whether the legislature, in the exer- lxxxiii), forbidding aliens ineligible cise of the police power, could dis- to citizenship to acquire, possess, or cover a reason for withholding ped- enjoy agricultural land. It was said dlers' licenses from aliens. The in upholding the legislation that business of peddling furnishes such “our decision in Terrace v. Thompopportunities for the practice of son, supra, controls the decision of fraud that it is a proper subject for all questions raised here." legislative regulation.
If. Webb v. O'Brien, 263 U, S. 322, in the same interest (protection of 68 L. ed. 321, 44 Sup. Ct. Rep. 112, the public], the legislature deems it dealt with the right of a citizen to important that licenses shall be enter into a cropping contract with granted only to citizens of the a Japanese subject living in Cali
(Cal, 226 Pac. 914.) fornia as affected by the Alien Land police power, to restrain dangerous Law. The court said: “The provi- practices (id. 916) and to regulate sion of the act which limits the the carrying and use of firearms privilege of ineligible aliens to ac- and other weapons in the interest of quire real property or any interest the public safety (id. 917). therein to that prescribed by treaty In our opinion the legislation is not in conflict with the 14th constitutes a proper exercise of the Amendment. Terrace v. Thompson police power, and and Porterfield v. Webb, supra.
is not invalid under forbidding
ownership of Another case under the Alien the 14th Amend- firearms-police Land Law is Frick v. Webb, 263 U. ment. The purpose S. 326, 68 L, ed. 323, 44 Sup. Ct. of the act is to conserve the public Rep. 116, which involved the own- welfare, to prevent any interference ership of stock by a Japanese sub- with the means of common defense ject in the Merced Farm Com- in times of peace or war, to insure pany, a corporation of this state. the public safety by preventing the The court held that “the state unlawful use of firearms. It cannot has power, and the act evidences be assumed that the legislature did its purpose, to deny to ineligible not have evidence before it, or that aliens permission to own, lease, use, it did not have reasonable grounds, or have the benefit of lands with- to justify the legislation, as, for inin its borders for agricultural pur- stance, that unnaturalized foreignposes. It may forbid in
born persons and persons who have direct as well as direct ownership been convicted of a felony were and control of agricultural land by more likely than citizens to unlawineligible aliens."
fully use firearms or engage in danIt may safely be assumed that in
gerous practices against the gova general sense the reasons that in- ernment in times of peace or war, duced legislation involved in the
or to resort to force in defiance of case at bar exerted an influence in law. To provide against such conthe adoption of the enactments con- tingencies would plainly constitute sidered in the foregoing authori- a reasonable exercise of the police ties. If rights in land may be de- power. nied to aliens by the state, there As to the point that different and would seem no reason why, in the
more severe punishment is provided exercise of its police power, it might for the same offense by $ 2 than $ 5 not also protect itself against the of the act, it is to be noted that the
ownership, traffic respective sections prescribe differConstitutional law-denying
in, and use of fire- ent offenses. Section 5 provides it aliens right to
arms by aliens. shall be a misdemeanor for any perpossess firearms.
This inhibition son within the state to carry conmight well tend to conserve peace cealed on his person or within any and quiet, and, in times of war as vehicle which is under his control well as of peace, serve to avoid the or direction any pistol, revolver, or injection of such issues into the in- other firearm capable of being conternational relations of the Federal cealed upon the person, without government.
having a license to carry such fire"Police power is the power inher- arm. The gravamen of that offense ent in a government to enact laws
is for any person, citizen or otherwithin constitution- wise, to have the possession of the -police power defined.
al limits, to protect kind of firearms described without
the order, safety, a license. In Pace v. Alabama, 106 health, morals, and general welfare U. S. 583, 27 L. ed. 207, 1 Sup. Ct. of society." 12 C. J. 904. It is a Rep. 637, the court said: "Equality well-recognized function of the of protection" means that persons legislature, in the exercise of the “shall not be subjected, for the same