SEI FUJII v. STATE

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District Court of Appeal, Second District, Division 2, California.

SEI FUJII v. STATE.

Civ. 17309.

Decided: April 24, 1950

J. Marion Wright, Owen E. Kupfer, Los Angeles, for appellant. Fred N. Howser, Attorney General of the State of California, Everett W. Mattoon, Assistant Attorney General, John F. Hassler, Jr., Deputy Attorney General, for respondent.

The sole question on this appeal is the validity and enforceability of the Alien Land Law, sometimes referred to as the Alien Property Initiative Act of 1920. ,Stats.1921, p. lxxxiii, 1 Deering's Gen.Laws, 1944 ed., p. 129, Act 261.

Pursuant to permission to sue the State of California granted by section 738.51 of the Code of Civil Procedure plaintiff brought this action for the purpose of obtaining a determination whether or not an escheat has occurred under the provisions of the Alien Land Law as to real property which he acquired by grant deed in July, 1948. An answer was filed by the State alleging as a defense that plaintiff was born in Japan; that he is ineligible to become a citizen of the United States by reason of the naturalization laws, and that by virtue of the provisions of the Alien Land Law he ‘is not qualified or permitted to acquire, possess, enjoy, use, cultivate, occupy or transfer real property or any interest therein in the State of California, or to have in whole or in part the beneficial use thereof.’

When the cause came on for trial it was submitted on a statement of facts which it was stipulated should be considered as evidence, to wit: that plaintiff was born in Japan in 1882; he came to the United States in July, 1903, where he resided until June, 1911; in the latter month he departed for Japan and remained there until he returned to the United States in July, 1913; he has resided and made his domicile in the United States continuously since his last arrival; plaintiff is and at all times throughout his lifetime has been an alien, a citizen and subject of Japan and a person ineligible to become a citizen of the United States by reason of the naturalization laws; that there is no treaty now existing between the United States and Japan nor has there been at any time a treaty giving to plaintiff, a citizen and subject of Japan, or to any alien Japanese not eligible to citizenship in the United States, any right to acquire, possess, enjoy, use, cultivate, occupy or transfer real property in the State of California, or any interest therein; that plaintiff purchased and acquired the property which is the subject of this action by grant deed dated July 29, 1948.

The court made findings of fact in accord with the stipulated evidence, whereupon judgment was entered declaring and adjudging that the property described in the deed to plaintiff escheated to the State of California on July 29, 1948, the date of the deed, by reason of the provisions of the Alien Property Initiative Act of 1920, and that plaintiff has no right, title or interest in or to such property or in or to any beneficial use thereof. From that judgment plaintiff has appealed.

The Alien Land Law was adopted by the electorate at a general election held in 1920 pursuant to the initiative provisions of the Constitution. Art. IV, sec. 1. Conformable to the permission to amend the initiative act granted to the Legislature by section 13 thereof several sections have been amended. Sections 1 and 2, as amended, Stats.1923, ch. 441, p. 1021, read as follows:

‘Section 1. All aliens eligible to citizenship under the laws of the United States may acquire, possess, enjoy, use, cultivate, occupy, transfer, transmit and inherit real property, or any interest therein, in this state, and have in whole or in part the beneficial use thereof, in the same manner and to the same extent as citizens of the United States, except as otherwise provided by the laws of this state.

‘Sec. 2. All aliens other than those mentioned in section one of this act may acquire, possess, enjoy, use, cultivate, occupy and transfer real property, or any interest therein, in this state, and have in whole or in part the beneficial use thereof, in the manner and to the extent, and for the purposes prescribed by any treaty now existing between the government of the United States and the nation or country of which such alien is a citizen or subject, and not otherwise.’

That portion of section 7 of the statute applicable to this action reads as amended, Stats.19458 ch. 1129, p. 2164: ‘Any real property hereafter acquired in fee in violation of the provisions of this act by any alien mentioned in Section 2 of this act, or by any company, association or corporation mentioned in Section 3 of this act, shall escheat as of the date of such acquiring, to, and become and remain the property of the State of California.’

Plaintiff contends that the statute is in violation of the Constitution of the United States in that it denies to him the equal protection of the law; that it arbitrarily discriminates against him solely because of his race; that classification on the sole basis of race is arbitrary and irrational; that the test of eligibility to citizenship, to wit, the so-called ‘primary standard’ in the acts of Congress relating no naturalization and citizenship, does not afford a sound basis for discriminatory state classification; that no undesirable traits can properly be attributed to that class of aliens identified as those ineligible to citizenship; that no ‘clear or present danger’ or other exceptional circumstances exist sufficient to justify arbitrary discrimination against Japanese; that the Alien Land Law is not a valid police regulation; that it is invalid, special legislation prohibited by sections 11 and 21 of Article I and section 25 of Article IV, Suvd. 33, of the Constitution2 of this State; that it unlawfully delegates state legislative power to Congress, and, finally, that the statute is inconsistent with the declared principles and spirit of the United Nations Charter.

The constitutionality of alien land laws has been the subject of attack for nearly 30 years and, except for a few provisions not relating to the right of an alien to own land, the attacks have failed. The Supreme Court of the United States sustained the provision of the Constitution of Washington prohibiting the ownership of lands by aliens other than those who in good faith have declared their intention to become citizens of the United States, Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255, and the Alien Land Law of California. Porterfield v. Webb, 263 U.S. 225, 44 S.Ct. 21, 68 L.Ed. 278; Webb v. O'Brien, 263 U.S. 313, 44 S.Ct. 112, 68 L.Ed. 318; Frick v. Webb, 263 U.S. 326, 44 S.Ct. 115, 68 L.Ed. 323; Cockrill v. California, 263 U.S. 258, 45 S.Ct. 499, 69 L.Ed. 944. The statute has been sustained also by the appellate courts of this state. In re Akado, 188 Cal. 739, 207 P. 245; Porterfield v. Webb, 195 Cal. 71, 231 P. 554; Mott v. Cline, 200 Cal. 434, 253 P. 718; People v. Osaki, 209 Cal. 169, 286 P. 1025; People v. Cockrill, 62 Cal.App. 22, 216 P. 78, affirmed sub nom. Cockrill v. California, supra; People v. Nakamura, 125 Cal.App.2d 268, 13 P.2d 805.

The validity of the statute was again sustained in People v. Oyama, 29 Cal.2d 164, 173 P.2d 794. That decision was reversed, Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249, on one ground only, to wit, the unconstitutionality of section 9 which (1) declares a prima facie presumption that a conveyance is made with intent to evade or avoid the statute if title to real property is taken in the name of a person eligible to citizenship and the consideration is paid by a noneligible alien, and (2) places the burden on the grantee to show the conveyance was not made with the intent to prevent, evade or avoid escheat. The court 332 U.S. at pages 646–647, 68 S.Ct. at pages 275, 276, 92 L.Ed. 249, expressly declined to re-examine the constitutionality of any provision of the statute other than section 9.

In plaintiff's brief he has quoted from concurring and dissenting opinions in many of the cases in which some of the justices have expressed the opinion that the statute is void, but he has not referred us to a case in which either court has overruled its former decision upholding the act. The cases cited by plaintiff to sustain his theory are Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249, supra; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441, and Takahashi v. Fish & Game Comm., 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478. In none of these cases does a majority of the court indicate a disagreement with its former decisions sustaining the validity of the statute.

We have noted that in Oyama v. California, the latest expression of the court on the subject, only one provision of the act was discussed and that did not relate to the right of an ineligible alien to own land. The prior decisions of the court hereinbefore cited remained unchallenged by the majority opinion. No question relating to the Alien Land Law was involved in Shelley v. Kraemer, or in the Takahashi case. In the Shelley case it was held that restrictive covenants as to ownership of property based on race or color are not in themselves a violation of the equal protection clause of the Fourteenth Amendment, but that that clause inhibits judicial enforcement of such covenants by state courts. The Takahashi case held that the California statute forbidding the issuance of commercial fishing licenses to aliens ineligible to citizenship violates the equal protection clause. None of the three decisions of the United States Supreme Court relied on by plaintiff can be considered as modifying in any particular the previous opinions relating to the Alien Land Law. The only cases cited directly sustaining plaintiff's position is Namba v. ,McCourt, 185 Ore. 579, 204 P.2d 569, in which the Oregon Supreme Court invalidated a statute of that state similar in terms to the California act. The opinion in that case, after quoting extensively from majority and minority opinions of the United States Supreme Court in the cases last above cited, concludes that that court has now overruled its former decisions. We do not so construe the decisions in the Shelley and Takahashi cases, since no question relating to the Alien Land Law was there involved, and, as we have stated, the court refused in the Oyama case to consider the main questions as to constitutionality of the statute although such questions were squarely placed before the court and extensively argued in the briefs.

Save for the matters to be hereinafter discussed, which are based upon an authority more potent than the Constitution of this State, an authority which for want of opportunity has not previously been made the basis of a judicial determination of the question before us, this opinion might well be terminated under the doctrine of stare decisis with a reaffirmation of the former decisions, since upon constitutional questions we deem ourselves obliged to follow the decisions of the Supreme Courts of the United States and of this State until one of those courts should announce the overruling of its own decisions.

While the Alien Land Law, as will hereinafter appear, is applicable at the present time to only a few aliens other than Japanese, historically it has not always been so. By the provisions of section 1 of the act ‘All aliens eligible to citizenship’ may own or lease real property, and under section 2 ‘All aliens other than those mentioned in section one’ may own or lease real property in the manner, to the extent and for the purposes prescribed by treaty ‘now existing’ between the United States and the nation or country of which such alien is a citizen or subject. It is conceded that the treaty of commerce and navigation in effect between the United States and Japan in 1920 did not entitle Japanese nationals to own real property in California.

At the time of the adoption of the statute natives of Japan, China, India and many other nations were ineligible to become citizens of the United States any by reason of the nonexistence of treaties with such countries entitling their nationals to own real property in this State they were inhibited from that privilege. Thus the right of aliens to own real property in California was made by the Alien Land Law to depend upon the federal statute as it then existed designating the aliens who were ‘eligible to citizenship’ and upon such amendments as the Congress might thereafter enact.

In 1920 only aliens who were free white persons, aliens of African nativity, persons of African descent and native born Filipinos having three years' honorable service in the United States Coast Guard, Navy, Marine Corps or Naval Auxiliary Service were eligible to become naturalized citizens. 8 U.S.C.A. § 359, 40 Stat. 542, ch. 69. By the Nationality Act of 1940, 54 Stat. 1140, ch. 876, as amended 57 Stat. 601, ch. 344, 60 Stat. 416, ch. 534, the subject matter now being in 8 U.S.C.A. § 703, persons eligible for naturalization now include white persons, persons of African nativity or descent, persons who are descendants of races indigenous to the continents of North or South America or adjacent islands, Filipino persons or persons of Filipino descent, Chinese persons and persons of Chinese descent, and persons of races indigenous to India.

The list of persons eligible to citizenship has been further extended, 8 U.S.C.A. § 1001, permitting the naturalization of persons who served honorably in the military or naval services of the United States during World War II and who but for such service would be ineligible.

The census report of 1940 (16th Census, 1940, Characteristics of Nonwhite Population by Race, p. 2) shows that the number of aliens residing in the continental United States who were ineligible to naturalization under the law then in effect by reason of racial origin were: Japanese 47,305, Chinese 37,242, Hindu 1,495, Korean 749, Filipino 431, Polynesian 9, other Asian 95. The number of foreign born of each race then residing in California were: Japanese 33,569, Chinese 16,676. Other foreign born in California are not shown by the census report.

Using the figures shown by the 1940 census and applying the naturalization law now in effect only a total of 48,158, composed of Japanese, Korean, Polynesian and a small number of other Asiatics, residing in the United States would be at present ineligible to citizenship. The census report shows a decline in the foreign born japanese population residing in the United States from 70,477 in 1930 to 47,305 in 1940. Since there has been no Japanese immigration since 1940 it is reasonable to assume that there has been a further substantial decrease in such population since the last census was taken, that the number of Japanese in the United States ineligible to naturalization is now far below the total in 1940, and that the number in California has correspondingly declined. Since the number of resident Asiatics ineligible to citizenship other than Japanese is negligible it follows that the latter are practically the only persons affected by the statute under consideration.

The successive amendments to the naturalization law expanding the class of persons entitled to citizenship and therefore entitled to own land in California, have, by the process of congressional erosion, left only the natives of Japan and an insignificant number of nationals of other countries who remain ineligible to citizenship and hence ineligible under the terms of the statute to own real property.

In the period of thirty years since the Alien Land Law was adopted we have revised our opinions concerning the rights of other peoples. Out of the travail of World War II came the concept of ‘respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’ as expressed in the Charter of the United Nations.3 59 Stat. 1035 ff; U.S.Code Cong.Service, 79th Congress, 1945, p. 964.

The government of the United States has traditionally been the leader in espousing the rights of man and has championed the cause of the smaller and less privileged nations. The war of 1898 was fought in support of an oppressed country. The efforts of our government in this regard reached fruition in the convention of representatives of the nations of the earth at which the Charter of the United Nations was adopted. It was promptly ratified by the Senate of the United States, thereby proclaiming allegiance to its principles and providing precedent and example for other countries. The United States has consistently regarded its treaties with other nations as inviolate.

The Charter has become ‘the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ U.S.Const., Art. VI, sec. 2. The position of this country in the family of nations forbids trafficking in innocuous generalities but demands that every State in the Union accept and act upon the Charter according to its plain language and its unmistakable purpose and intent.

Since the Charter is now the supreme law of the land it becomes necessary to examine its provisions and guarantees and to interpret it in the light in which it was adopted by the participating nations. The Organization determined in the preamble ‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, * * * to promote social progress and better standards of life in larger freedom * * *.’ Among the Purposes and Principles found in Article 1 of Chapter I are ‘To develop friendly relations among nations based on respect for the principle of equal rights * * *; To achieve international cooperation * * * in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion * * *.’ In Article 2 it is affirmed that the Organization and its members ‘shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.’

It is agreed in Chapter IX, Article 55, 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.’ By Article 56 it is declared that ‘All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.’

In the address of the President of the United States to the Senate on July 2, 1945, urging the prompt ratification of the Charter by that body he said: ‘It seeks to promote world-wide progress and better standards of living.

‘It seeks to achieve universal respect for, and observance of, human rights and fundamental freedoms for all men and women without distinction as to race, language or religion.

‘It seeks to remove the economic and social causes of international conflict and unrest.

‘It is the product of many hands and many influences. It comes from the reality of experience in a world where one generation has failed twice to keep the peace. The lessons of that experience have been written into the document.’ U.S. Code Cong. Service, supra, pp. 961–962.

On December 10, 1948, the General Assembly of the United Nations passed and proclaimed and called upon all member countries to publicize, disseminate and expound in schools and elsewhere, a ‘Universal Declaration of Human Rights' affirming among other things that ‘All human beings are born free and equal in dignity and rights. They * * * should act toward one another in a spirit of brotherhood. [Art. 1.] Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [Art. 2.] * * * Everyone has the right to own property alone as well as in association with others.’ [Art. 17.] This Declaration implements and emphasizes the purposes and aims of the United Nations and its Charter.

Democracy provides a way of life that is helpful; however its promises of human betterment are but vain expressions of hope unless ideals of justice and equity are put into practice among governments, and as well between government and citizen, and are held to be paramount. The integrity and vitality of the Charter and the confidence which it inspires would wane and eventually be brought to naught by failure to act according to its announced purposes. Its survival is contingent upon the degree of reverence shown for it by the contracting nations, their governmental subdivisions and their citizens as well.

This nation can be true to its pledge to the other signatories to the Charter only by cooperating in the purposes that are so plainly expressed in it and by removing every obstacle to the fulfillment of such purposes.

A perusal of the Charter renders it manifest that restrictions contained in the Alien Land Law are in direct conflict with the plain terms of the Charter above quoted and with the purposes announced therein by its framers. It is incompatible with Article 17 of the Declaration of Human Rights which proclaims the right of everyone to own property. We have shown that the expansion by the Congress of the classes of nationals eligible to citizenship has correspondingly shrunk the group ineligible under the provisions of the Alien Land Law to own or lease land in California until the latter now consists in reality of a very small number of Japanese. The other Asiatics who still remain on the proscribed list are so few that they need not be considered.

Clearly such a discrimination against a people of one race is contrary both to the letter and to the spirit of the Charter which, as a treaty, is paramount to every law of every state in conflict with it. The Alien Land Laws must therefore yield to the treaty as the superior authority. The restrictions of the statute based on eligibility to citizenship, but which ultimately and actually are referable to race or color, must be and are therefore declared untenable and unenforceable.

Judgment reversed with directions to enter a decree in favor of plaintiff in accord with the prayer of his complaint.

FOOTNOTES

FN1. Section 738.5 authorizes the bringing of an action against the State of California by any person claiming an interest in real property to determine whether or not an escheat has occurred as to such property under the provisions of the Alien Land Law of 1920. It is provided that no matter may be adjudicated in such action except the issue of the occurrence of an escheat and no issue shall be raised or claim made by the plaintiff based upon estoppel or failure of the State to have commenced an escheat proceeding..  FN1. Section 738.5 authorizes the bringing of an action against the State of California by any person claiming an interest in real property to determine whether or not an escheat has occurred as to such property under the provisions of the Alien Land Law of 1920. It is provided that no matter may be adjudicated in such action except the issue of the occurrence of an escheat and no issue shall be raised or claim made by the plaintiff based upon estoppel or failure of the State to have commenced an escheat proceeding.

2.  Art. I, sec. 11: ‘All laws of a general nature shall have a uniform operation.’Art. I, sec. 21: ‘No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.’Art. IV, sec. 25: ‘The Legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * [subd. 33] In all other cases where a general law can be made applicable.’

3.  The Preamble to the Charter, Chapter I and a portion of Chapter IX read as follows:‘We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind; and‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small; and‘to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained; and‘to promote social progress and better standards of life in larger freedom; and for these ends to practice tolerance and live together in peace with one another as good neighbors; and to unite our strength to maintain international peace and security; and‘to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest; and‘to employ international machinery for the promotion of the economic and social advancement of all peoples; have resolved to combine our efforts to accomplish these aims.‘Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.‘Chapter I. Purposes and Principles‘Article 1‘The Purposes of the United Nations are:‘1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;‘2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;‘3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and‘4. To be a center for harmonizing the actions of nations in the attainment of these common ends.‘Article 2‘The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.‘1. The Organization is based on the principle of the sovereign equality of all its Members.‘2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.‘3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered.‘4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.‘5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.‘6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.‘7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.‘Chapter IX. International Economic And Social Cooperation‘Article 55‘With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:‘a. higher standards of living, full employment, and conditions of economic and social progress and development;‘b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and‘c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.‘Article 56‘All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.’

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.