Terrace v. Thompson

• Decision Date: 25 July 1921
• Docket Number: 132-E.
• Citation: 274 F. 841
• Parties: TERRACE et al. v. THOMPSON, Attorney General of Washington.
• Court: U.S. District Court — Western District of Washington

274 F. 841

TERRACE et al. v. THOMPSON, Attorney General of Washington.

No. 132-E.

United States District Court, W.D. Washington, Southern Division.

July 25, 1921

James B. Howe, E. Heister Guie, and Dallas V. Halverstadt, all of Seattle, Wash., for complainants.

Lindsay L. Thompson, Atty. Gen., pro se.

Before GILBERT, Circuit Judge, and CUSHMAN and NETERER, District judges.

CUSHMAN District Judge.

The bill alleges that the complainants Terrace, owners of certain lands in this district, desire to lease such lands to the complainant Nakatsuka, a subject of Japan, who desires to lease them from them, and that he is engaged in farming and trading wholesale and retail in farm products; that such lease will be prevented by defendant's enforcement of chapter 50, Laws of Washington 1921, commonly known as the 'Alien Land Bill.' It is alleged that the result will be that the complainant Nakatsuka--

'if he is prevented from leasing land for the purpose of producing such farm products for such trade, * * * will be prevented from engaging in trade and the incidents to trade as he is authorized to do under the treaty hereinafter mentioned.'

It is alleged that the act in question is contrary to the Fourteenth Amendment to the Constitution of the United States, to article 1 of the treaty with Japan (37 Stat 1504), and to section 33, art. 2, of the Constitution of the state of Washington.

The act provides, not only for the forfeiture of the lands affected but that whoever conveys lands to an alien shall be guilty of a gross misdemeanor, the punishment for which may be a year's imprisonment in jail. This, we conclude, is such a severe punishment as to prevent persons affected from resorting to the courts to determine the validity of the statute in question, and that, therefore, the remedy at law is not sufficient. Ex parte Young, 209 U.S. 123, 28 Sup.Ct 441, 52 L.Ed. 714, 13 L.R.A. (N.S.) 932, 14 Ann.Cas. 764. The remedy at law is also inadequate as to the complainant Nakatsuka. Raich v. Truax (D.C.) 219 F. 273, at page 283.

Rast v. Van Deman & Lewis, 240 U.S. 342, 355, 368, 36 Sup.Ct. 370, 60 L.Ed. 679, L.R.A. 1917A, 421, Ann. Cas. 1917B, 455, and Tanner v. Little, 240 U.S. 369, 36 Sup.Ct. 379, 60 L.Ed. 691, have no application. In those cases the statute attacked required the payment of a license fee. In such cases an adequate remedy at law exists, because, after payment of the license tax, suit can be had for its repayment. For the same reason McCormack Bros. Co. v. Tacoma (D.C.) 201 F. 374, is inapplicable, as well as for the further reason that the plaintiff in such case was a corporation which could not be imprisoned for failure to pay the license, being only liable for the payment of a small fine. In such a case the remedy at law would not, necessarily, be inadequate.

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. ' Section 33, art. 2.

The act in question defines 'land' as follows:

"Land' does not include lands containing valuable deposits of minerals, metals, iron, coal or fire clay or the necessary land for mills and machinery to be used in the development thereof and the manufacture of the products therefrom, but does include every other kind of land and every interest therein and right to the control, possession, use, enjoyment, rents, issues or profits thereof except a mortgage and except a right to the possession, use or enjoyment of land for a period of not more than ten years for a purpose for which an alien is accorded the use of land by a treaty between the United States and the country whereof he is a citizen. ' Laws 1921, c. 50, p. 156, Sec. 1 (b).

Under the foregoing language, it is not necessary to consider the question of whether at common law a leasehold interest is personalty or realty, for, without doubt, by the foregoing, it is intended to include leases of agricultural lands.

The act also provides:

"Alien' does not include an alien who has in good faith declared his intention to become a citizen of the United States, but does include all other aliens and all corporations and other organized groups of persons a majority of whose capital stock is owned or controlled by aliens or a majority of whose members are aliens. ' Section 1 (a).

There is nothing in the bill as to the length of time for which complainant Nakatsuka desires to lease the lands, or for which it will be necessary to lease them.

There is no allegation in the bill as to whether the complainant Nakatsuka has or has not declared his intention to become a citizen of the United States. All that is disclosed by the bill touching his eligibility for citizenship is the allegation that he is a subject of the Emperor of Japan. There is a possibility that, included among the subjects of the Emperor, there are Caucasians, or 'white persons.'

Congress has, by section 2169, R.S. (U.S. Comp. Stat. Sec. 4358), limited the right of naturalization to those aliens being 'free white persons, and to aliens of African nativity and to persons of African descent.'

We feel justified in considering the bill as though it were alleged that Nakatsuka had the prevailing ethnological characteristics of his fellow subjects, and that he had not declared his intention to become a citizen. He is, therefore, not a 'white person,' within the meaning of section 2169, R.S. (U.S. Comp. Stat. Sec. 4358). In re Young (D.C.) 198 F. 715; In re Saito (C.C.) 62 F. 126; In re Geronimo Para (D.C.) 269 F. 643.

Nakatsuka not being eligible to citizenship under the law as it now stands, even if such complainant had filed, or sought to file, a declaration of intention to become a citizen, he could not-- considering the present uniformity in the decisions-- fairly be said to have done so 'in good faith.'

A state may lawfully prohibit aliens acquiring land within its boundaries, if there is no treaty to the contrary. Chirac v. Chirac, 2 Wheat. 259, 272, 4 L.Ed. 234; Hauenstein v. Lynham, 100 U.S. 483, 484, 25 L.Ed. 628; De Vaughn v. Hutchinson, 165 U.S. 566, 570, 17 Sup.Ct. 461, 41 L.Ed. 827; Clarke v. Clarke, 178 U.S. 186, 20 Sup.Ct. 873, 44 L.Ed. 1028; Blythe v. Hinckley, 180 U.S. 333, 21 Sup.Ct. 390, 45 L.Ed. 557.

If a state Constitution or statute conflicts with the treaty, it is either void or suspended during the existence of the treaty, for by article 6 of the Constitution of the United States it is provided:

'This Constitution, and the laws of the United States which shall be made in pursuance thereof; and 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.'

See Martin v. Hunter, 1 Wheat. 304, 4 L.Ed. 97; Carneal v. Banks, 10 Wheat. 181, 6 L.Ed. 297; Hopkirk v. Bell, 3 Cranch, 454, 2 L.Ed. 497; Geofroy v. Riggs, 133 U.S. 258, 10 Sup.Ct. 295, 33 L.Ed. 642; Ware v. Hylton, 3 Dall. 199, 1 L.Ed. 568; Chirac v. Chirac, 2 Wheat. 259, 4 L.Ed. 234; Hauenstein v. Lynham, 100 U.S. 483, 488, 25 L.Ed. 628; Missouri v. Holland, 252 U.S. 416, 434, 40 Sup.Ct. 382, 64 L.Ed. 641, 11 A.L.R. 984; In re Stixud's Estate, 58 Wash. 339, 109 P. 343, 33 L.R.A. (N.S.) 632, Ann. Cas. 1912A, 850; State ex rel. Tanner v. Staeheli (Wash.) 192 P. 991.

This brings us to the question of the terms of the treaty with Japan with which the act is alleged by the bill to conflict. The only portion of the treaty material to be considered is that part of article 1 providing:

'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 and 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.' 37 Stat.at L.P. 1504.

The lasting impression created by the foregoing language is that it was intended to withhold the right to own or lease agricultural lands. This impression becomes fixed upon consideration of the fact that this, in substance, was true at common law. Coke upon Littleton, bk 12b.

A law of California (Laws of 1913, c. 113) is, in its general purport, similar to the act here in question, although by section 2 of that act aliens were permitted to lease lands for a term of not over three years. A controversy arose concerning the validity under the treaty of the California act between the Department of Foreign Affairs for the Empire of Japan and our own Secretary of State. In the progress of the exchange of views between the officials so representing the two governments, the Secretary of State found the act not to violate the treaty...