O'Brien v. Webb

• Decision Date: 20 December 1921
• Docket Number: 654.
• Citation: 279 F. 117
• Court: U.S. District Court — Northern District of California
• Parties: O'BRIEN et al. v. WEBB, Atty. Gen. of California, et al.

279 F. 117

O'BRIEN et al. v. WEBB, Atty. Gen. of California, et al.

No. 654.

United States District Court, N.D. California.

December 20, 1921

Albert H. Elliot and Guy C. Calden, both of San Francisco, Cal., for plaintiffs.

U. S Webb, Atty. Gen. of California, and Frank English, Deputy Atty. Gen. of California, for defendant Webb.

C. C Coolidge, Dist. Atty., of San Jose, Cal., pro se.

Before HUNT, Circuit Judge, and BLEDSOE and DOOLING, District Judges.

DOOLING District Judge.

This action is brought by plaintiffs O'Brien, a citizen of the United States, and Inouye, a subject of the emperor of Japan lawfully residing in the state of California, to restrain the defendants U.S. Webb, Attorney General, and C. C. Coolidge district attorney, from attempting to enforce as against them the California Alien Land Law (St. 1921, p. lxxxiii) if they enter, as they desire to do, into a certain contract, a copy of which, designated a cropping contract, is attached to the bill. It is claimed by plaintiffs that the act in question violates certain provisions of the Constitution of the United States, and is in conflict with treaty stipulations and with certain named sections of the Revised Statutes. It is further claimed that, even if the act itself be held to be valid, yet the contract which plaintiffs desire to make is not prohibited thereby, although this fact will not deter defendants from prosecuting them, if such contract be made.

The act in question provides:

'Section 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 purpose 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.'

'Sec. 10. If two or more persons conspire to effect a transfer of real property, or of an interest therein, in violation of the provisions hereof, they are punishable by imprisonment in the county jail or state penitentiary not exceeding two years, or by a fine not exceeding five thousand dollars, or both.'

We have held in the case of Porterfield and Mizuno v. Webb et al., 279 F. 114, involving a lease, and submitted with the present action on motion for a preliminary injunction, that the act itself contravenes no constitutional provision, violates no treaty stipulation, and conflicts with no statutory enactment. The real question for determination. then, is whether or not the contract in question is one the execution of which is prohibited by the Act.

The contract provides:

That the owner (O'Brien) of a certain tract of land wishes to 'employ cropper (Inouye) for a period of four years as an employe, for the purpose of planting, cultivating, and harvesting crops to be grown on owner's land' under the terms thereafter set forth. By the terms the 'owner' agrees to 'employ' the cropper, and not to interfere with him in the planting, cultivating, and harvesting of the crop, and to protect cropper during the existence of the contract against interference by any person, 'the general possession of the land above described being reserved to owner. ' Owner agrees to provide and maintain housing accommodations for cropper; also, to furnish necessary implements, tractors, and gasoline for the operation of the tractors, to furnish horses and feed for planting, cultivating, and harvesting the crops provided for, to furnish all things necessary for the proper farming of the land, and also to haul the crop, when properly prepared by cropper for hauling and shipping, to the packing house or station; to 'permit' cropper to work the land on the conditions set forth, provided 'cropper shall have no interest or estate whatsoever in the land described herein'; to give to cropper 50 per cent. of all crops grown during the period of the agreement, 'as compensation for the services and labor of the cropper as herein set forth'; also, 'to grant to the cropper his right to a division of the crop after it is harvested and before its removal from the land, provided that the cropper exercises his option thereunto'; and, in the event of the exercise of such option, to grant to cropper the right to remove from the land his share of the crops within a reasonable time, even though said time should extend beyond the term of cropper's employment; also to grant to cropper the right to carry out the terms of his agreement by employing such agents or employes as he sees fit, and to give them free ingress or egress over the property, and the right to live thereon without let or hindrance.

The cropper agrees to plant, cultivate, and harvest strawberries, raspberries, loganberries, and vegetables, in good farmerlike manner; to maintain and keep up the personal property, and return to the owner implements which may have been supplied to him in good condition; to keep the irrigation ditches and levees in good order, and prevent loss of irrigation water; to harvest all crops when ripe, and to pack and prepare the same for shipping and transportation if necessary. It is mutually agreed that, if the land is sold during the agreement, the owner may terminate the agreement by paying the cropper for his services at the rate of $100 per month from the beginning of the calendar year in which the agreement is terminated, together with moneys expended by the cropper, for labor and material furnished for planting and cultivating. Further mutual agreement is that in case of breach on the part of the owner, or in case of any hindrance with or prevention of farming upon any part of said land, owner agrees to pay the cropper for money expended by cropper for plainting and cultivation of the then growing crops, together with 20 per cent. of the moneys expended by the cropper, as liquidated damages for the cancellation of the agreement.

In a cropping contract the cropper has no estate in the land. He may be physically upon the land, and have possession of the crops, yet such possession is that of a servant, who receives his pay in a certain proportion of the crop. Whether an agreement for the occupation of farming land is a lease or a crop contract depends on the intention of the parties, as gathered from the words of the agreement when it has been reduced to writing. In the contract under consideration nothing is said about leasing or letting the premises, or of paying anything as rent, and so far as the language used aids us it is merely an agreement to till the land on shares and divide the crop, which would make the parties tenants in common of the crop while growing and when matured. Connell v. Richmond, 55 Conn. 401, 11 A. 852. The length of the term may be considered, but it is not a determining factor. Walker v. Fitts, 24 Pick. (Mass.) 191; Guest v. Opdyke, 31 N.J.Law, 552; Aiken v. Smith, 21 Vt. 172. In the last case the court held there was no tenancy, although the letting for crop rent was to continue for five years, yet the contract contained technical words appropriate to a lease-- i.e., the words 'agree to let.'

Under the instrument under consideration the cropper has no interest in the land, merely receiving his share of the crop as the price of his labor. The 'general possession of the land' is expressly reserved to the owner, and he alone could maintain trespass. Adams v. McKesson, 53 Pa. 81, 91 Am.Dec. 183; Williams v. Cleaver, 4 Houst. (Del.) 453. The duty of the owner is to divide off to the cropper his share of the crop, and until the cropper exercises his right to a division of the crop after it is harvested and before removal, the whole title remains in the owner of the land. McNeeley v. Hart, 32 N.C. 63, 51 Am.Dec. 377; Brazier v. Ansley, 33 N.C. 12, 51 Am.Dec. 408.

An agreement by which the one party is to furnish the land and the stock and the other to do the work, the crop to be divided equally between them, is one of hiring, and not of landlord and tenant. Hunt v. Mathews, 132 Ala. 286, 31 So. 613. In Hudgins v. Wood, 72 N.C. 256, the agreement referred to services, and the landowner agreed to supply house and teams and to give one-half of the crops in pay for services. It was held there was no tenancy.

In Taylor v. Donahoe, 125 Wis. 513, 103 N.W. 1099, there was a written agreement for the cultivation of certain lands owned and controlled by Donahoe, whereby Finnegan was to cultivate, do all work of raising crops and marketing during his term of service, to furnish certain stock, seeds, etc. There were stipulations regarding sharing expenses and Donahoe was to pay Finnegan, 'in full compensation for his services, one-third of the crops. ' The agreement was characterized as a personal agreement. Finnegan was to have the use of the dwelling house on the lands, except parts which Donahoe reserved for his own use. Justice Winslow said:

'The distinction between a tenant and a cropper is that a tenant has an estate in the land for a given time, and a right of property in the crops, and hence makes the division thereof between himself and the landlord in case of an agreement upon shares, while a cropper has no estate in the land, nor ownership of the crops, but is merely a servant, and receives his share of the crops from the landlord, in whom the title is. It is always a question of construction of the agreement under which the parties are acting. The agreement in question

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