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(274 F.)

"In giving legislative aid to these constitutional provisions Congress enacted in 1866 chapter 31, § 1, 14 Stat. 27 (Rev. Stats. § 1978), that: 'All citizens of the United States shall have the same right in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

"And in 1870, by chapter 114, § 16, 16 Stat. 144 (Rev. Stats. § 1977), that: "All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and no other." Buchanan v. Warley, 245 U. S. 60, at page 78, 38 Sup. Ct. 16, at page 19, 62 L. Ed. 149, L. R. A. 1918C, 210, Ann. Cas. 1918A, 1201. (Italics those of this court.)

These statutes show that Congress then understood the Fourteenth Amendment did not forbid the state the right to deny ownership of lands within its boundaries to aliens.

[7] The act of 1897 (U. S. Comp. Stats. §§ 3490–3495), prohibiting the ownership of land by aliens in the territories of the United States, provides that the denial of such rights shall not apply to any alien who shall become a bona fide resident of the United States. By section 3491, Comp. Stats., Congress gave all alien bona fide residents, including the Japanese, rights denied by the act in question; but it is limited. to the territories and has no application in the states. The court in Buchanan v. Warley, supra, holding the state statute unconstitutional, accentuated the fact that the discrimination of the statute was "solely because of color," and, again, "this interdict is based wholly upon color, simply that and nothing more."

In the course of the controversy between the State Department and the Minister for Foreign Affairs of the empire of Japan over the validity of the California statute under the treaty already mentioned, the legal adviser for the State Department said:

The statute contains no discrimination against Japanese as such, but applies equally to all aliens not eligible to citizenship." "Annex No. 8, p. 24, "Aide Memoire, Wash. July 16, 1913," "Controversy-United States and Japan-California Question."

Still less does the Washington act discriminate against the Japanese, for it provides that

"Alien' does not include an alien who has in good faith declared his intention to become a citizen of the United States."

The prohibition by this definition is made applicable to all aliens, both those eligible and those not eligible to citizenship, provided that they have not declared their intention to become citizens. To this extent, the present suit is to be distinguished from In re Ah Chong (C. C.) 2 Fed. 733. In the latter case, Judge Sawyer held invalid a California law providing:

All aliens incapable of becoming electors of this state are hereby prohibited from fishing, or taking any fish, lobsters, shrimps, or shellfish of any kind, for the purpose of selling or giving to another person to sell. Every violation of the provisions of this act shall be a misdemeanor, punishable upon

conviction by a fine of not less than $25, or by imprisonment in the county jail for a period of not less than thirty days." 2 Fed. at page 734.

Of this act, the court says:

To exclude the Chinaman from fishing in the waters of the state, therefore, while the Germans, Italians, Englishmen, and Irishmen, who otherwise stand upon the same footing, are permitted to fish ad libitum, without price, charge, let, or hindrance, is to prevent him from enjoying the same privileges as are 'enjoyed by the citizens or subjects of the most favored nation'; and to punish him criminally for fishing in the waters of the state, while all aliens of the Caucasian race are permitted to fish freely in the same waters with impunity and without restraint, and exempt from all punishments, is to exclude him from enjoying the same immunities and exemptions 'as are enjoyed by the citizens or subjects of the most favored nation;' and such discriminations are in violation of articles 5 and 6 of the treaty with China, cited in full in Parrott's Case. The same privileges which are granted to other aliens, by treaty or otherwise, are secured to the Chinaman by the stipulations of the treaty. Conceding that the state may exclude all aliens from fishing in its waters, yet if it permits one class to enjoy the privilege it must permit all others to enjoy, upon like terms, the same privileges, whose governments have treaties securing to them the enjoyment of all privileges granted to the most favored nation.

"The Fourteenth Amendment of the national Constitution provides that 'no state shall * deny to any person within its jurisdiction the equal protection of the laws.' To subject the Chinese to imprisonment for fishing in the waters of the state, while aliens of all European nations under the same circumstances are exempt from any punishment whatever, is to subject the Chinese to other and entirely different punishments, pains, and penalties than those to which others are subjected, and it is to deny to them the equal protection of the laws, contrary to those provisions of the Constitution." 2 Fed. at pages 736 and 738.

The present case is not only to be distinguished from the Chong Case because of the fact that the present law is made applicable to all aliens and there is no punishment by imprisonment or a fine of the alien grantee of lands, but the case is to be further distinguished because of the fact that the treaty with Japan does not contain, as to land ownership, the "most favored nation" clause or any language of such import.

The fourteenth article of the treaty contains the general favored nation clause:

"Except as otherwise expressly provided in this treaty the high contracting parties agree that, in all that concerns commerce and navigation, any privilege, favor or immunity which either contracting party has actually granted, or may hereafter grant, to the citizens or subjects of any other state shall be extended to the citizens or subjects of the other contracting party gratuitously, if the concession in favor of that other state shall have been gratuitous, and on the same or equivalent conditions, if the concession shall have been conditional." 37 Stats. at L. 1507. (The italics are those of this court.)

In view of the limitation of this clause to "all that concerns commerce and navigation," it is clear that the privileges secured by article 14 do not apply to the limited rights granted by article 1, already quoted, in which the right to lease land is limited to that for residential and commercial purposes.

(274 F.)

Neither Guinn and Beal v. United States, 238 U. S. 347, 35 Sup. Ct. 926, 59 L. Ed. 1340, L. R. A. 1916A, 1124, nor Myers v. Anderson, 238 U. S. 368, 35 Sup. Ct. 932, 59 L. Ed. 1349, have any application to the present controversy, for, if it be granted that the present law is aimed primarily at the so-called yellow or brown races of the Orient, the result is the same. There is no restriction upon the authority of Congress to discriminate in the matter of the eligibility of an alien to become a citizen because of color. The Fifteenth Amendment provides that the right of a citizen of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. The Fourteenth Amendment made the negroes citizens.

It is obvious that the objection on the part of Congress is not due to color, as color, but only to color as an evidence of a type of civilization which it characterizes. The yellow or brown racial color is the hallmark of Oriental despotisms, or was at the time the original naturalization law was enacted. It was deemed that the subjects of these despotisms, with their fixed and ingrained pride in the type of their civilization, which works for its welfare by subordinating the individual to the personal authority of the sovereign, as the embodiment of the state, were not fitted and suited to make for the success of a republican form of Government. Hence they were denied citizenship. In re Ah Yup, 1 Fed. Cas. 223, No. 104. It is this disqualification put upon them by the federal government to which the state objects, and not their color, although the federal government may have made their race color the irrefutable evidence of disqualification for citizenship.

Congress, in withholding the right to citizenship from these Oriental races, no doubt recognized, as statesmen long have done, that it was of the essence of its duty to insure the perpetuation of our own type of civilization. It has been well said:

"The last two generations have seen an enormous change in the vision of life wider and deeper than it has ever been comprehended before, and as our knowledge has grown, the narrow utilitarianism has shriveled off us, and we see the use and value and nobility of lands and ages far outside the scope of our forefathers. We do not look on them as wrong in differing from ourselves. We begin to understand that they are each adapted to the country and people to which they belong, and we are not so certain that we can improve everybody by trying to make them imitate us."

The sympathetic and temperate view here expressed, no doubt, should restrain us from forcing our civilization upon alien types. Yet it lessens no jot or tittle the duty of the court to hold impregnable the barrier erected by Congress to preserve, in its purity, our own type of civilization. The more homogeneous its parts, the more perfect the union. It may be that the changes wrought in the Orient in the last 50 or 75 years now warrant a different policy; but there is no law or treaty that yet has said "the twain shall meet," or that, if citizenship be accorded these Orientals, the danger is past of our becoming a "mechanical medley of race fragments."

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

274 F.-54

of, the state, and, so lacking, the state may rightfully deny him the right to own and lease real estate within its boundaries. If one incapable of citizenship may lease or own real estate, it is within the realm of possibility that every foot of land within the state might pass to the ownership or possession of noncitizens. Such a result would leave the foundation of the state but a pale shadow, and the structure erected thereon but a Tower of Babel, from which the tenants in possession might, when the shock of war came, bow themselves out, because they were not bound as citizens to defend the house in which they lodged.

This is no new thing. Tribal laws of the progenitors of the AngloSaxons, while still upon the continent, made an estate in lands, similar to a freehold, a prerequisite to a voice in the tribal government. The "free-necked man," or "freeman," was synonymous with "freeholder." They were interdependent. A freeman had a vote in determining tribal policies, and no one was a freeman without an estate in lands. Green's History of the English People, book 1, chapter 1, subhead "The Land." The recognition of this principle has run throughout the history of our race and its governments. Section 33, article 2, of the Constitution of the state of Washington, provides:

"The ownership of lands by aliens, other than those who in good faith have declared their intention to become citizens of the United States, is prohibited in this state, except where acquired by inheritance, under mortgage or in good faith in the ordinary course of justice in the collection of debts; and all conveyances of lands hereafter made to any alien directly, or in trust for such alien, shall be void: Provided, That the provisions of this section shall not apply to lands containing valuable deposits of minerals, metals, iron, coal or fire clay, and the necessary land for mills and machinery to be used in the development thereof and the manufacture of the products therefrom. Every corporation, the majority of the capital stock of which is owned by aliens, shall be considered an alien for the purposes of this prohibition."

In Oregon Mortgage Co. v. Carsten's, 16 Wash. 165, 47 Pac. 421, 35 L. R. A. 841, it was held that an alien corporation, which had taken a mortgage, had the right to take a deed to the mortgaged land from the citizen mortgagor. As the above section excepts from its prohibition lands acquired "under mortgage or in good faith in the ordinary course of justice in the collection of debts," the court held that this exception did not require "a proceeding in court in the case of a mortgaged debt." Goon Gan v. Richardson, 16 Wash. 373, 47 Pac. 762, was also an alien mortgagee case, in which the court held that the incapacity to own land can only be shown at the suit of the state.

State ex rel. Winston v. Morrison, 18 Wash. 664, 52 Pac. 228, was a suit in which the court held a 99-year lease of real estate amounted to "ownership," as that word was used in the above-quoted section. In State ex rel. Winston v. Hudson Land Co., 19 Wash. 85, 52 Pac. 574, 40 L. R. A. 430, the holding was the same as to a 49-year lease. In State ex rel. Morrell v. Superior Court, 33 Wash. 542, 74 Pac. 686, it was held that an alien corporation could not acquire real estate in the state of Washington by eminent domain.

(274 F.)

Abrams v. State of Washington, 45 Wash. 327, 88 Pac. 327, 9 L. R. A. (N. S.) 186, 122 Am. St. Rep. 914, 13 Ann. Cas. 527, hold that the grantor in a deed of real estate to an alien could not recover the real estate; that the state alone could invoke rights on account of the disability of the grantee under the above section, and that, the alien having died before the state sought to escheat the lands, the heirs, although themselves aliens, were entitled to inherit the lands, as well as citizens, under the express exception in the Constitution; and that the state, to succeed, must proceed while the lands were still in possession of the alien wrongfully acquiring them. In State ex rel. Atkinson v. World Real Estate Commercial Co., 46 Wash. 104, 89 Pac. 471, it was held that, as the alien had conveyed the lands prior to the institution. of proceedings to escheat, the state had lost such right. Prentice v. How, 84 Wash. 136, 146 Pac. 388, was a decision to the same effect. In State ex rel. Tanner v. Staeheli (Wash.) 192 Pac. 991, decided September 3, 1920, the lands were escheated, although the alien had, at the time of acquiring the land, believed himself a citizen, and had in good faith exercised the rights and privileges of citizenship, and had, after the proceedings of the state to escheat, filed his declaration to become a citizen. State ex rel. Tanner v. Rychen (Wash.) 193 Pac. 220, decided November 1, 1920, is a decision to the same effect.

From the foregoing, it is clear that the Supreme Court of Washington has held the common law only changed by this constitutional provision to the extent plainly expressed therein. The exceptions in the constitutional provision constitute a grant to the alien, and, of course, are not subject to legislative change or limitation, at least by the state. But it does not follow, because the Constitution prohibits alien "ownership" of lands with certain exceptions, that, the Constitution not having defined what shall constitute ownership, the Legislature may not do so. The Legislature is not bound to leave the courts to speculate upon that subject. In fact, the act of the Legislature but follows the common law:

"But as to a lease for yeares, there is a diversitie betweene a lease for yeares of a house for the habitation of a merchant stranger being an alien, whose king is in league with ours, and a lease for yeares of lands, meadows, pastures, woods and the like. For if he take a lease for yeares of lands, meadows, etc. upon office found, the king shall have it. But of a house for habitation he may take a lease for yeares as incident to commerce; for without habitation he cannot merchandise or trade. But if he depart, or relinquish the realme, the king shall have the lease. So it is if he die possessed thereof neither his executors or administrators shall have it, but the king; for he had it only for habitation as necessary to his trade or traffique and not for the benefit of his executor or administrator. But if the alien be no merchant, then the king shall have the lease for yeares, albeit it were for his habitation; and so it is if he be an alien enemie. And all this was so resolved by the judges assembled together for that purpose in the case of Sir James Croft. Pasch. 29, of the raigne of queene Elizabeth." Coke upon Littleton, book 1, chapter 1, 2b, subhead "Of Fee Simple."

The most the act in question does is no more than to invoke a rule of strict construction against the alien as to the meaning of the word "ownership" as appearing in the Constitution.

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