Court gives it reasoning at length in Terrace and Nakatsuka v. Thompson.10 This case arose under the Washington Constitution and Anti-Alien Land Law," which prohibited any alien who had not in "good faith" declared his intention to become a citizen to "own, take, have or hold the legal or equitable title, or right to any benefit of any land," 12 and provided for forfeiture of the land to the State in event of violation. In this case the plaintiff, Terrace, who was a citizen of Washington and owned certain farmng lands therein, wished to lease these lands to Nakatsuka, a subject of Japan. But Nakatsuka, being excluded from citizenship, could not in good faith declare his intention to become a citizen. Both therefore brought a bill in equity to enjoin the Attorney General from enforcing the state statute on the ground that it conflicted with the Fourteenth Amendment13 and with a treaty with Japan. The injunction was refused by the Federal Court; and the Supreme Court affirmed the decision. The facts in Porterfield and Mizuno v. Webb 15 are practically the same as in the above case, except that it arose under the California Alien Land Law,18 which differs from the Washington law in that the same prohibition is directed against all aliens ineligible to citizenship. But the court arrived at the same conclusion in this case.

Is this legislation contrary to the Equal Protection Clause of the Fourteenth Amendment of the Constitution? It has been well established that the alien inhabitants of a state as well as its citizens may invoke the protection of this clause," which secures equal

cases Mr. Justice Butler delivered the opinion of the Court. But Mr. Justice McReynolds and Mr. Justice Brandeis thought there was no justiciable question involved and should have been dismissed on that ground. Mr. Justice Sutherland took no part in the consideration or decisions. For discussions of the same subject as this note based upon the decisions of the instant cases in the lower courts, see 10 CAL. L. REV. 241, 494 (1921-22); 31 YALE L. JOUR. 299 (1921-22); 17 Amer. Jour. Int. Law 29 (Jan., 1923). Supra in note 9.

10

"Butler, J., in Terrace v. Thompson, supra in note 9, p. 2.

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no state shall

13 U. S. Const. Amend., Art. 14, sec. 1: deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It should be noted that the due process clause is not involved since the land legislation is not confiscatory. It does not affect vested rights. If a Japanese owned a farm before the law was passed, he still can continue to own it.

"Treaty with Japan, Feb. 21, 1911 (37 Stat. at Large 1504), Art. 1. Supra in note 9.

15

"For a thorough discussion of this subject see 64 U. OF PA. L. REV. 616 (1915-16); Yick Wo v. Hopkins, 118 U. S. 356 (1885); an alien cannot

18

protection to all in the enjoyment of their rights under like circumstances.1 Therefore under its police power the state may discriminate against aliens when adequate justification is shown.19 Following the rule at common law that no alien may hold land,20 each state in absence of any treaty to the contrary has the unquestionable right to determine who may own land within its boundaries.21 Therefore state legislation that excludes all aliens from the privilege of owning land, is clearly not against the equal protection clause. But in the instant legislation a distinction is made within the alien class-(a) between those who have declared their intention to become citizens

be deprived of the privilege of working: Truax v. Raich, 239 U. S. 33 (1915); Meyer v. Nebraska, 262 U. S. 390 (1922). See 72 U. OF PA. L. REV. 46 (November, 1923) for a discussion of the unconstitutionality of the Foreign Language Laws. Nor of being a barber: Templar v. State Board of Examiners, 131 Mich. 254, 90 N. W. 1058 (1902); nor of obtaining a peddler's license: State v. Montgomery, 94 Me. 192, 47 Atl. 165 (1900). An alien cannot be taxed more than a citizen: Ex parte Kotta, 200 Pac. 957 (Cal., 1921) (Poll tax). Nor may colored persons be segregated into certain parts of a city: Buchanan v. Warley, 245 U. S. 60 (1917). See 63 U. of PA. L. REV. 895 (1914-15).

18 In re Kemmler, 136 U. S. 436 (1890); Giozza_v. Tiernan, 148 U. S. 657, 662 (1892); and in Truax v. Corrigan, 257 U. S. 312, 337 (1921), the Court said: "In adjusting legislation to the need of a state the legislature has a wide discretion and it may be fully conceded that perfect uniformity of treatment of all persons is neither practical nor desirable, that classification of persons is constantly necessary but it must regard real resemblances and real differences between things, and persons, and class them in accordance with their pertinence to the purpose in hand." Thus a State may require non-residents to obtain licenses for motor vehicles passing through the state. Hendrick v. Maryland, 235 U. S. 611 (1914). Also see St. John v. New York, 201 U. S. 633 (1905); Mo. Pacific R. R. v. Machey, 127 U. S. 205 (1887).

19

A state may preserve its game for its own citizens and forbid aliens to hunt: Patsone v. Pennsylvania, 232 U. S. 138 (1914); Bondi v. MacKay, 87 Vt. 271, 89 Atl. 228 (1914). But see In re Ah Chung, 2 Fed. 737 (1880). A state may forbid aliens to have in their possession firearms without special permit: State v. Rheaume, 116 Atl. 758 (N. H., 1922). But see People v. Zerilo, 219 Mich. 635, 189 N. W. 927 (1922). Also note in 24 A. L. R. 1119. A state may presume its labor for its own citizens and forbid the employment of aliens upon public works: Heim v. McCall, 239 U. S. 175 (1915); Crane v. New York, 239 U. S. 195 (1915), affirming 214 N. Y. 154 (1915). Licenses to sell liquor may be restricted to citizens and denied to aliens: Trageser v. Gray, 73 Md. 250, 20 Atl. 905 (1890). A peddler's license may be reserved to citizens only: Commonwealth v. Hanna, 195 Mass. 262, 81 N. E. 149 (1907); Cf. State v. Montgomery, supra in note 17. A pilot may be required to be a qualified elector: State v. Ames, 47 Wash. 328, 92 Pac. 137 (1907). See 64 U. of Pa. L. Rev. 616 (1915-16).

20 Fairfax's Devisee v. Hunter's Lessee, 11 U. S. (7 Cranch) 603, 609, 619, 620 (1813); also see I Cooley's Blackstone (4th ed.) 315,* 372; 2 Kent's Commentaries (14th ed.) 80,* 54; 3 Tiffany, Real Property (1920 ed.), sec. 597.

Hauenstein v. Lynham, 100 U. S. 483, 484, 488 (1879); Blythe v. Hinckley, 180 U. S. 333, 340 (1900).

and those who have not,22 or (b) between those eligible and ineligible to citizenship.23 It should be noted that the non-declarant class includes but is not limited to aliens ineligible to become citizens. It also includes eligible aliens who have not declared their intention, or who having declared their intention, failed to be admitted to citizenship within seven years after declaration was made.24 unreasonable classifications? 25

Are these

In Terrace et al. v. Thompson the Supreme Court decided that "the inclusion of good faith declarants in the same class with citizens does not unjustly discriminate against aliens who are ineligible or against eligible aliens who have failed to declare their intention." 26 The reason is that just as the rights, privileges and duties of aliens differ widely from those of citizens, those of alien declarants differ substantially from those of non-declarants.27 The classification, furthermore, is based upon a distinction established by Congress for the naturalization of aliens,28 whch in itself is a reasonable one.

"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 of the state, and so lacking, the state may rightfully deny

23 Washington Anti-Alien Land Law, supra in note 3.

23 California Alien Land Law, supra in note 2.

"The Washington Law, supra in note 3, requires that the declaration of intention shall be made "in good faith." Since under the naturalization laws of the United States the effect of a declaration of intention terminates in seven years, such a declaration is presumably not "bona fide" if the declarant is not admitted to citizenship within that period.

25 See In re Ah Chung (1880), supra in note 19, decided under a statute of California prohibiting all aliens incapable of becoming electors of the state from fishing in its waters, held that this statute was unconstitutional because it subjected the Chinese to unjust discrimination. But the instant case of Terrace v. Thompson, supra in note 9, and Porterfield v. Webb, supra in note 9, expressly overrule this early Federal Court decision.

26

Supra in note 9, at p. 8, opinion by Mr. Justice Butler. Accord: State v. Rheaume, supra in note 19; Commonwealth v. Hanna, supra in note 19.

"The differences between declarants and non-declarants are set forth in the opinion of the Court at page 7 as follows: "Formerly in many states the right to vote and hold office was extended to declarants, and many important offices have been held by them. But these rights have not been granted to non-declarants. By various acts of Congress, declarants have been made liable to military duty, but no act has imposed that duty on nondeclarants. the treaty invoked by the appellants provides that the citizens or subjects of each shall be exempt in the territories of the other from compulsory military service. forced loans or military exactions or contributions. The alien's formally declared bona fide intention to renounce forever all allegiance and fidelity to the sovereignty to which he lately has been a subject, and to become a citizen of the United States and permanently to reside therein markedly distinguishes him from an ineligible alien or an eligible alien who has not so declared."

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 may pass to the ownership or possession of non-citizens.” 29

But the California Land Law expressly provides that its restrictions are to be excepted to the extent prescribed by any treaty now existing 30 between the United States and the country of which the alien is a subject. Does that provision affect this legislation? Manifestly if a treaty with Japan gave the right to Japanese subjects to own land in the United States under the Land Law, the treaty would control. However, even in the absence of such provision in the state law, where a Federal treaty conflicts with that law, being by the Constitution 1 the "supreme Law of the Land," it supersedes the state statute.32 But in the instant case 3 the Supreme Court held that this legislation was not in conflict with the existing treaty 34 between the United States and Japan, on the ground that the treaty "not only contains no provision giving Japanese the right to own or lease land for agricultural purposes,35 but when viewed in the light

"Terrace v. Thompson, 274 Fed. 841, 849, quoted with approval by the Supreme Court in the instant case.

30

Cal. Stat. 1921, p. lxxxiii, supra in note 2, sec. 2, which provides that all aliens other than those eligible to citizenship may acquire real property or any interest therein in the manner and for the purpose prescribed by any treaty now existing between the United States and the country of which the alien is a subject, and not otherwise. See Buell, Some Legal Aspects of the Japanese Question, 17 AMER. JOUR. INT. LAW 29, 36 (Jan., 1923).

31

32

U. S. Const., Art. 6, par. 2.

66

all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding.' Regulating inheritance of land by aliens: Hauenstein v. Lynham, supra in note 21; Geofrey v. Riggs, 133 U. S. 258 (1889); Wunderle v. Wunderle, 144 Ill. 40, 53, 33 N. E. 195 (1893); Techt v. Hughes, 229 N. Y. 222, 128 N. E. 185 (1920). Ownership of Land: Tanner v. Staeheli, 192 Pac. 991 (Wash., 1920) (State Statute not in conflict with treaty with Switzerland). Alien poll tax in conflict with treaty with Japan: Ex parte Terui, 187 Cal. 20, 200 Pac. 954 (1921).

*Terrace v. Thompson, supra in note 9; Porterfield v. Webb, supra in note 9.

"Treaty with Japan, Feb. 21, 1911 (37 Stat. at Large 1504), Art. I: "The citizens or subjects of each of the High Contracting Parties shall have liberty to enter, travel and reside in the territories of the other to carry on trade, wholesale or retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established."

"The contention of the appellants in the instant cases was that the treaty granted that privilege.

of negotiations 36 leading up to its consummation, the language shows that the high contracting parties respectively intended to withhold a treaty grant of that right. . . . The right to 'carry on trade' or 'to own or lease and occupy houses, manufactories, warehouses, and shops,' or 'to lease land for residential and commercial purposes,' or 'to do anything incident to or necessary for trade' cannot be said to include the right to own or lease or to have any title to or interest in land for agricultural purposes.37 The enumeration of rights to own or lease for other specified purposes impliedly negatives the right to own or lease lands for these purposes.' This is particularly the

case in the absence of any favored nation clause.39 However, a treaty, ratified even after the passage of a state law, being the "supreme Law of the Land," " abrogates that statute. Therefore, the fact that the California law is only made subject to provisions of any "treaty now existing" is likely to prove of no avail. In this connection the language of the Court in Terrace v. Thompson is significant: "Each state in the absence of any treaty provision conferring the right, may enact laws prohibiting aliens from owning land within its borders." The only limitation upon the making of a Federal treaty

36

Diplomatic correspondents between the United States and Japan over the 1913 California Statute, supra in note 2, in which Viscount Chinda in note of June 4, 1913, claimed that the treaty gave the privilege of leasing realty, and that the California Statute was in violation thereof. Mr. Bryan, then Secretary of State, replied on July 16, 1913, that the right to own land was not conferred by treaty, and was in fact deliberately withheld by substituting into the treaty "to lease lands for residential and commercial purposes" in place of a more comprehensive clause contained in an earlier draft, "to lease land for residential, commercial, industrial, manufacturing and other lawful purposes." (Italics ours.) See for the entire correspondence "Annex No. 7," pp. 17-18. Controversy-United States and Japan-California Question, Congressional Library, JV 6888 C2 J4.

"In Terrace v. Thompson, 274 Fed. 841, 846, quoted with approval by the Supreme Court in the instant case, the Court said, "In the most liberal construction of this language that may be indulged in, it cannot fairly be said that truck-farming is incident to trading in the products of a farm any more than conducting a sheep ranch or growing mulberry trees is incidental to the dry-goods trade." Also see U. S. v. Knight, 156 U. S. 1 (1894); D. L. & W. R. R. v. Yurkonis, 238 U. S. 439 (1915).

38 Terrace v. Thompson, supra in note 9 at p. 10.

"The favored nation clause in a treaty gives to citizens of a contracting party in the territory of the other, as regards the subject matter of the treaty, the same rights and privileges extended to the most favored nation of the contracting parties. Washburn, American Interpretation of the Most Favored Nation Doctrine, I VA. L. Rev. 257 (1913); Matter of Scutella, 145 App. Div. 156, 129 N. Y. S. 20 (1911); Vietti v. Mackie Fuel Co., 109 Kans. 179, 197 Pac. 881 (1921); see 4 Moore, Digest of International Law, p. 702; U. S. For. Rel., 1913, p. 645, 647, and 1914, p. 433.

40 Cf. Society v. New Haven, 21 U. S. (8 Wheat.) 464 (1823); Geofrey v. Riggs, supra in note 32; Hauenstein v. Lynham, supra in note 21; Missouri v. Holland, 252 U. S. 416 (1919).