Webb v. Brien

Decision Date19 November 1923
Docket NumberNo. 26,26
Citation263 U.S. 313,44 S.Ct. 112,68 L.Ed. 318
PartiesWEBB, Atty. Gen. of California, et al. v. O'BRIEN et al
CourtU.S. Supreme Court

Mr. U. S. Webb, of San Francisco, Cal., for appellants.

[Syllabus from pages 3131-315 intentionally omitted] Mr. Louis Marshall, of New York City, for appellees.

[Argument of Counsel from pages 315-317 intentionally omitted] Mr. Justice BUTLER delivered the opinion of the Court.

This is a suit brought by the appellees to enjoin the Attorney General of California and the district attorney of Santa Clara county from instituting any proceedings to enforce the California Alien Land Law1 against them.

O'Brien is a citizen and resident of California, and owns 10 acres of agricultural land in the county of Santa Clara. Inouye is a capable farmer, and is a Japanese subject living in California. O'Brien and Inouye desire to enter into a cropping contract covering the planting, cultivating and harvesting of crops to be grown on the land. They allege that the execution of such a contract is necessary, in order that the owner may receive the largest return from the land, and that the alien may receive compensation therefrom; that the Attorney General and district attorney have threatened to and will enforce the act against them if they execute the contract, and will forfeit or attempt to forfeit the land by an escheat proceeding, and will prosecute them criminally for violating the act. They aver that the act is so drastic, and the penalties for its violation are so great, that neither of them may execute the contract even for the purpose of testing its validity and its application thereto, and that, unless the court shall determine the validity of the act and its application, they will be compelled to submit to it, whether valid or invalid, and to the appellants' interpretation of it, and so be deprived of their property without due process of laws and denied the equal protection of the laws in contravention of the Fourteenth Amendment.

Appellees applied for an interlocutory injunction. The matter was heard by three judges, as provided in section 266 of the Judicial Code (Comp. St. § 1243). The injunction was granted, and the Attorney General and district attorney appealed.

O'Brien, who is a citizen, has no legal right to enter into the proposed contract with Inouye, who is an ineligible Japanese alien, unless the latter is permitted by law to make and carry out such a contract. At common law, aliens, though not permitted to take land by operation of law, may take by the act of the parties; but they have no capacity to hold against the state, and the land so taken may be escheated to the state. See Fairfax's Devisee v. Hunter's Lessee, 7 Cranch. 603, 609, 619, 620, 3 L. Ed. 453; Doe ex dem. Governeur's Heirs v. Robertson, 11 Wheat. 332, 355, 6 L. Ed. 488; Phillips v. Moore, 100 U. S. 208, 212, 25 L. Ed. 603; Atlantic & Pacific Railroad v. Mingus, 165 U. S. 413, 431, 17 Sup. Ct. 348, 41 L. Ed. 770. In the absence of a treaty to the contrary, the state has power to deny to aliens the right to own land within its borders. Terrace et al. v. Thompson, 263 U. S. 197, 44 Sup. Ct. 15, 68 L. Ed. ——; Hauenstein v. Lynham, 100 U. S. 483, 484, 488, 25 L. Ed. 628; Blythe v. Hinckley, 127 Cal. 431, 59 Pac. 787, affirmed 180 U. S. 333, 340, 21 Sup. Ct. 390, 45 L. Ed. 557; In the Matter of Okahara (decided June 28, 1923; Cal. Sup.) 216 Pac. 614. The provision of the act which limits the privilege of ineligible aliens to acquire real property or any interest therein to that prescribed by treaty is not in conflict with the Fourteenth Amendment. Terrace et al. v. Thompson, supra; Porterfield v. Webb, 263 U. S. 225, 44 Sup. Ct. 21, 68 L. Ed. ——; In the Matter of Okahara, supra. The treaty between the United States and Japan (37 Stat. 1504-1509) does not confer upon the citizens or subjects of either in the territories of the other the right to acquire, possess or enjoy lands for agricultural purposes. Terrace et al. v. Thompson, supra; In the Matter of Okahara, supra.

By the proposed cropping contract, Inouye is given the right for a term of four years to plant, cultivate and harvest crops berries and vegetables—on the land, and to be free from interference by the owner, who undertakes to protect him during the term against interference by any other person. He is entitled to housing for himself, and is granted the right to employ others to work on the land, and to give to them free ingress and egress and the right to live on the land. He is entitled to one-half of all crops grown on the land during the term, to be divided after they are harvested and before removal from the land, and is given a reasonable time after the expiration of the term to remove his share of the crops. He is required to accept his share of the crops as reimbursement for expenditures made to carry on the farming operations, and as his only return from the undertaking. Assuming that the proposed arrangement does not amount to a leasing or to a transfer of an interest in real property, and that it includes the elements of a contract of employment (In the Matter of Okahara, supra), we are of opinion that it is more than a contract of employment, and that, if executed, it will give to Inouye a right to use and to have or share in the benefit of the land for agricultural purposes. And this is so, notwithstanding other clauses of the contract to the effect that the general possession of the land is reserved to the owner, that the cropper shall have no interest or estate whatever in the land, that he is given one-half of all crops grown as compensation for his services and labor, and that division of the crops is to be made after they are harvested and before their removal from the land.

The treaty grants liberty to own or lease and occupy houses, manufactories, warehouses, and shops, and to lease land for residential and commercial purposes.2 Section 2 of the act extends the privilege to acquire, possess, enjoy, and transfer real property or any interest therein only in the manner and to the extent and for the purposes prescribed in the treaty. The treaty given no permission to enjoy, use, or have the benefit of land for agricultural purposes. The privileges granted by the act are carefully limited to those prescribed in the treaty. The act as a whole evidences legislative intention that ineligible aliens shall not be permitted to have or enjoy any privilege in respect of the use or the benefit of land for agricultural purposes. And this view is supported by the circumstances and negotiations leading up to the making of the treaty. See Terrace et al. v. Thompson, supra; Same v. Same (D. C.) 274 Fed. 841, 844, 845. As applied to this case, the act may be read thus:

'Ineligible aliens may own or lease houses, manufactories, warehouses and shops, and may lease land for residential and commercial purposes. These things, but no possession or enjoyment of land otherwise, are permitted.'

The term of the proposed contract, the measure of control and dominion over the land which is necessarily involved in the performance of such a contract, the cropper's right to have housing for himself and to have his employees live on the land, and his obligation to accept one-half the crops as his only return for tilling the land clearly distinguish the arrangement from one of mere employment. The case differs from Truax v. Raich, 239 U. S. 33, 36 Sup. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283. In that case, a statute of Arizona making it a criminal offense for an employer of more than five workers, regardless of kind or class of work or sex of workers, to employ less than 80 per cent. native-born citizens of the United States was held to infringe the right, secured by the Fourteenth Amendment, of a resident alien to work in a common occupation cooking in a restaurant. The right to make and carry out cropper contracts such as that before us is not safeguarded to ineligible aliens by the Constitution. A denial of it does not deny the ordinary means of earning a livelihood or the right to work for a living. The practical result of such contract is that the cropper has use, control, and benefit of land for agricultural purposes substantially similar to that granted to a lessee. Conceivably, by the use of such contracts, the population living on and cultivating the farm lands might come to be made up largely of ineligible aliens. The allegiance of the farmers to the state directly affects its strength and safety. Terrace et al. v....

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