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Heney drew a rough draft of a measure in which the exact wording of the Japanese treaty was followed. Long before Bryan reached Sacramento, this Heney measure had been typed, and distributed among the proponents of alien land legislation.239
U. S. Webb, the State's Attorney General, after Heney had prepared the draft of his bill, worked out the measure which finally passed the Legislature.
The Webb measure was very simple and very short. It provided that all aliens who are eligible to become citizens of the United States could hold land the
as native born citizens. It then provided that aliens, not included among those eligible to become citizens of the United States, could hold land only to the extent and in the manner provided by the respective treaties then existing between the countries
239 The writer first saw the draft of the Heney bill on Thursday, April 24. Bryan did not reach Sacramento until the following Monday, April 28. The first four sections of the Heney bill were:
"Section 1. This Act shall be known and may be cited as the ALIEN LAND ACT' and shall apply to the subject mentioned in its title.
Sec. 2. The term "ineligible alien", when used in this Act, means an alien who is ineligible under the provisions of the Constitution and laws of the United States, to become a citizen thereof.
“Sec. 3. No ineligible alien, as herein defined, shall acquire title to or hold real property within this State, or any interest therein, or take or acquire or hold the same by devise, descent, purchase or otherwise, except as in this act provided.
“Sec. 4. Title to real property situated in this State, or to any right or interest therein, may be acquired, owned or held by any ineligible alien, whether resident or non-resident, only in the manner herein provided and subject to the restrictions, terms and conditions set forth and not otherwise.
“(a). Ineligible aliens may hereafter acquire, by purchase or otherwise (excepting by devise or descent which are hereinafter provided for), and own and lease and occupy houses or dwellings, manufactories, warehouses and shops, and the premises appertaining thereto used for purpose of residence or commerce, and may also lease land for residential and commercial purposes.'
of their nativity and this country and not otherwise. 240
The bill contained no provision under which affected aliens could lease land.
The Webb draft was made subject of several conferences. The objection was brought to it that it could be construed as a surrender or waiver on the part of the State of California of the State's right to regulate for itself the ownership of land within its borders, when such regulation conflicted with existing treaties. A section was accordingly added which provided specifically that nothing in the bill should be construed as such surrender or waiver.241
It will be remembered that on April 21, the Birdsall anti-alien land bill (Senate Bill 5) was for the second time amended by practically substituting a
new bill for it. On April 29, the day after Bryan's arrival at Sacramento, the measure
for the third time amended by striking out all the provisions of the measure as amended on April 21, and substituting for them the provisions of the Heney-Webb bill. In this
240 These sections of the Webb draft were as follows:
“Sec. 1. All aliens eligible to citizenship under the laws of the United States may acquire, possess, enjoy, transmit and inherit real property, or any interest therein, in this State, 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 and transfer real property, or any interest therein, in this State, 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."
241 The Section was:
“Sec. 7. Nothing in this act shall be construed as a limitation upon the power of the State to enact laws with respect to the acquisition, holding or disposal by aliens of real property in this State."
way the Heney-Webb bill was brought before the Senate.
By the time the bill had been printed to meet constitutional provisions, Thursday, May 1, it had become evident that Secretary Bryan's mission to California had failed. Sentiment was strong for the passage of the Heney-Webb bill. But there was no certainty that the measure could be passed. With but two or three exceptions the Democratic members of the Senate were counseling delay in accordance with Secretary Bryan's wishes. The Reactionary Republicans opposed the bill. Several members of the Los Angeles delegation were known to be out of sympathy with anti-alien legislation. A majority of the San Francisco delegation, ostensibly for the bill, was admittedly undependable. Without the support of the seven San Francisco Senators, the probabilities were that the measure could not be passed.
The session was drawing to its close. Action one way or the other was desirable, if not necessary, if the bill was to be passed. The measure would, in the regular course of legislative business come up for final action on the forenoon of May 1. Progressive leaders on the morning of May 1 entered the Senate Chamber with their minds made up to settle the question one way or the other, and let the bill go to vote.
They encountered opposition, led by Senator Curtin242 of Tuolumne and Senator Leroy A. Wright of San Diego.
242 Senator Curtin was chairman of the Committee on Platform which at the Democratic State Convention held in September, 1912, formed the State Democratic platform which put the Democratic party on record for "the passage of a bill that will prevent any alien not eligible to citizenship from owning land in the State of California." See footnote 189, page 213.
Senator Curtin offered a joint resolution 243 which set forth that inasmuch as the President of the United States had advised that the passage of any bill discriminating against any particular nation or nations would embarrass the Federal Government, etc., that the people of the State of California would defer to the President's wishes and "this Legislature will not at this session pass the bills advised against."
243 Curtin as a matter of fact introduced two resolutions, Senate Joint Resolution No. 36 and Senate Joint Resolution No. 37.
The first was loosely drawn, and dealt with the issue with undiplomatic frankness. The second paragraph of the first resolution set forth:
“Whereas, The President of the United States has earnestly suggested to this Legislature that the passage of said bills would likely produce serious international complications and unfriendly relations between the United States and a certain foreign nation now protesting against the passage of said bills and which nation deems the passage of said bills as intended to apply to subjects of the particular nation referred to."
In the second resolution (No. 37) this section was changed to read:
"Whereas, the President of the United States has earnestly advised this Legislature that the passage of any bill discriminating against any particular nation or nations would embarrass the Federal Government and to some degree disturb the friendly relations existing between the United States and the nation or nations discriminated against," etc.
Other changes corrected grammatical errors which appeared in the first resolution. The language of the resolution was also toned down. In Resolution No. 36, what had been the "request of the President" that he be permitted to deal with the problem through diplomacy, was made the "advice of the President," what had been in No. 36 the "demand of The People of California,” for such legislation was made in No. 37, the desire of The People of California.
In the second resolution, (No. 37) was a provision “that if at any time during the pendency of diplomatic effort the Governor of California becomes convinced that the success of such effort is improbable, he is hereby requested to call an extraordinary session of the Legislature for the purpose of enacting such a land law as the people demand.”
This provision did not appear in the first resolution. The first resolution was not reported out of committee.
244 On the day Senator Curtin introduced this resolution, Governor Johnson received the following telegram from President Wilson:
“I take the liberty of calling your attention to the Webb bill which would involve an appeal to the Courts on questions of treaty rights and bring on what might be long and delicate litigation. Woodrow Wilson.”
The Governor's reply was as follows:
The fault may
Immediately after Senator Curtin's resolution had been introduced, and, in the regular course of legislative business, sent to the Committee on Federal Relations, the Heney-Webb bill came up for passage.
Senator Curtin moved that action on the measure be postponed until the following day. The Progressives opposed such action. With the San Francisco delegation voting for the measure it could be passed despite the opposition of the Curtin-Wright group. At this stage of the bill's passage it must be remembered, there was 110 provision in the measure under which Asiatic aliens could lease land in California. Had the measure been passed that day as the Progressives had planned, and for which they were contending, the measure would have been sent to the Assembly without provision for leasing. It is improbable that such a clause would have been added in the Assembly. The bill would have gone to the Governor without a provision to permit leasing of lands to Asiatic aliens.
In the midst of the debate on Curtin's motion to postpone action, Senator Wright and Senator Tom Finn of San Francisco engaged in a moment's conversation at Finn's desk. The San Francisco Senator soon after asked Senator Birdsall if a time in the future could not be fixed for consideration of the bill. The leaders of the proponents, when Finn made this inquiry, gave evidence of confusion and uncertainty.
They perhaps remembered that when Alien Land
be due to the fact that we have endeavored to presume affirmatively upon the fact of our bill conforming to the existing treaty.
"I have referred the matter at once to our Attorney General and I would be extremely grateful for any suggestion that would avoid the objection you mention. Hiram W. Johnson."