De Cano v. State, 28101.

• Decision Date: 28 February 1941
• Docket Number: 28101.
• Citation: 7 Wn.2d 613,110 P.2d 627
• Parties: DE CANO et al. v. STATE et al.
• Court: Washington Supreme Court

110 P.2d 627

7 Wn.2d 613

DE CANO et al. v. STATE et al.

No. 28101.

Supreme Court of Washington, En Banc.

February 28, 1941

Action under Declaratory Judgment Act, Rem.Rev.Stat. §§ 784-1 to 784-17, by Pio De Cano and the Seattle Filipino Community Clubhouse against the State of Washington, B. Gray Warner, as Prosecuting Attorney of King County, Wash., and another, to obtain an adjudication of the validity and effect of the anti-alien land law, Rem.Rev.Stat. §§ 10581-10588. The State of Washington and B. Gray Warner, as Prosecuting Attorney of King County, filed separate cross-complaints by which they sought to have the lands of the named plaintiff forfeited to the state. From the judgment, the defendants appeal.

Affirmed as to Pio De Cano and reversed as to the Seattle Filipino Community Clubhouse.

MILLARD J., dissenting.

Appeal from Superior Court, King County; Donald A McDonald, judge.

Smith Troy, Atty. Gen., John E. Belcher, of Olympia and B. Gray Warner, Pros. Atty., and Wm. Hickman Moore, both of Seattle, for appellants.

Austin E. Griffiths, of Seattle, for respondents.

Wettrick, Flood, O'Brien & Stuntz, of Seattle, amici curiae.

DRIVER Justice.

This action was instituted under the declaratory judgment act, Rem.Rev.Stat. (Sup.), §§ 784-1 to 784-17, incl. (Laws of 1935, chapter 113, p. 305, as amended by Laws of 1937, chapter 14, p. 39), to obtain an adjudication of the validity and effect of Laws of 1921, chapter 50, p. 156, as amended by Laws of 1937, chapter 220, p. 1092 (Rem.Rev.Stat. (Sup.) §§ 10581 to 10588, incl., commonly known as the antialien land law.

The defendants, State of Washington and B. Gray Warner, as prosecuting attorney of King county, filed separate cross complaints by which they sought to have the lands of plaintiff DeCano forfeited to the state. After a trial without a jury, the lower court, by a memorandum opinion, announced its conclusion that the 1937 amendatory statute contravened Art. II, § 19, of the state constitution, which provides that 'No bill shall embrace more than one subject, and that shall be expressed in the title.'

Judgment was entered declaring and establishing that the plaintiffs were legally entitled to acquire and own and to exercise all of the incidental rights of ownership of land within the state. This appeal by the defendants followed.

There is no substantial dispute as to the facts. Respondent DeCano, a native Filipino, was born in the Philippine Islands in 1894 and resided there continuously until he migrated to the United States in 1911. Since 1914, he has been a resident of Seattle, where he owns, in fee simple, a tract of land which he acquired in May, 1939. In March, 1939, respondent DeCano had filed with the clerk of the United States District Court at Seattle his declaration of intention to become a citizen of the United States. He has never served in the United States Navy, Marine Corps, Naval Auxiliary Service, or the Coast Guard, nor, so far as the record discloses, has he ever applied for enlistment therein either Before or after the filing of his declaration of intention.

Respondent Seattle Filipino Community Clubhouse (for convenience, hereinafter termed the corporate respondent) is a nonprofit corporation organized and existing under the laws of the state of Washington. All of its members are native Filipinos. It owns no real property, or interest in real property, and it has not contracted for the purchase thereof, but one of its purposes, according to the testimony of its president, is to acquire a tract of land for a clubhouse site in the city of Seattle.

At the very threshold of the case, we encounter this question: May the corporate respondent maintain this declaratory judgment action under the circumstances just stated?

One may not, by such action, challenge the constitutionality of a statute unless it appears that he will be directly damaged in person or in property by its enforcement. Acme Finance Co. v. Huse, 192 Wash. 96, 73 P.2d 341, 114 A.L.R. 1345. The action must also be adversary in character and involve a present and actual, as distinguished from a possible or potential, controversy between the parties. Washington Beauty College, Inc., v. Huse, 195 Wash. 160, 80 P.2d 403; State v. Fruitland Irrigation District, 196 Wash. 11, 81 P.2d 844; and Adams v. Walla Walla, 196 Wash. 268, 82 P.2d 584.

In the instant case, there is no actual and present controversy between the corporate respondent and the appellants. The anti-alien land statute does not directly affect or threaten the corporation's rights, and would do so at some indeterminate time in the future only in the event that it should acquire, or at least enter into a contract to acquire, real property within the state. The corporate respondent has, therefore, failed to meet the requirements of justiciability and is not entitled to maintain a declaratory judgment action.

As to the respondent DeCano, the following questions are presented for determination:

1. Are native Filipinos subject to the anti-alien land statute as amended because of its special definition of 'alien' to include 'all persons who are non-citizens of the United States and who are ineligible to citizenship by naturalization'?

2. Is respondent DeCano, under the circumstances of the present case, within the following exception of the statute: "Alien' does not include an alien who has in good faith declared his intention to become a citizen of the United States'?

3. Does the 1937 statute, by reason of inadequacy of its title, violate Art. II, § 19, of the state constitution?

To answer these questions, we must inquire into the citizenship status and eligibility for naturalization of native Filipinos under the laws of the United States.

It has been a long-standing, traditional policy of the United States to limit citizenship by naturalization to members of the white race. An exception to this policy was the broadening of eligibility to include aliens of African nativity and persons of African descent by an act of Congress passed not long after the Civil War. 18 Stat. 318, Rev.Stat. § 2169, 8 U.S.C.A. § 359. Otherwise, the limitation of naturalization by the cited statute to 'aliens being free white persons' has remained intact, and subsequent exceptions have not included non-white races, as a whole and as such, but have been limited to particular individual members thereof who can meet certain special requirements, such as service in the Military or Naval establishment of the United States. See § 359, and §§ 388 to 390 and 392 to 394, incl., of Title 8 U.S.C.A.

As a result of the war with Spain, the United States acquired new territories, including the Philippine Islands, in which a considerable portion of the population consisted of native inhabitants. The cession was effected under the Treaty of Paris, proclaimed April 11, 1899, 30 Stat. 1754, which provided that Spanish subjects residing in the ceded territory, natives of the Peninsula of Spain, might, by making a prescribed declaration, elect to preserve their allegiance to the Spanish Crown, in the absence of which declaration they should be deemed to have renounced it, 'and to have adopted the nationality of the territory in which they may reside.' Article 9. As to natives of the Islands, however, the treaty recited that 'The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.' Article 9. Congress, by § 4 of its Act of July 1, 1902, 32 Stat. 692, then declared: 'That all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, * * *.'

Thereafter, and prior to the passage of the Act of June 29, 1906, § 30, 34 Stat. 606, 8 U.S.C.A. § 360, this anomalous situation existed: Citizens of the Philippine Islands, regardless of race or color, were not eligible to United States naturalization because they were not aliens and naturalization was limited to aliens 'being free white persons, and to aliens of African nativity and to persons of African descent' by the express terms of Rev.Stat. § 2169, 8 U.S.C.A. § 359, cited supra. However, the act of June 29, 1906, § 30, provided that: 'All the applicable provisions of the naturalization laws of the United States shall apply to and be held to authorize the admission to citizenship of all persons not citizens who owe permanent allegiance to the United States, and who may become residents of any State or organized Territory of the United States, with the following modifications: The applicant shall not be required to renounce allegiance to any foreign sovereignty; * * *.'

This statute clearly modified § 2169 of the Revised Statutes by removing the requirement of alienage as to citizens of the Philippine Islands, but it was long a controversial question whether it extended the race and color limitation to include such citizens of the Filipino race. The following cases held them eligible for United States naturalization: In re Mallari, D.C., 239 F. 416, and In re Bautista, D.C., 245 F. 765. The following cases held them ineligible: In re Alerto. D.C., 198 F. 688; In re Lampitoe, D.C., 232 F. 382; In re Rallos, D.C., 241 F. 686.

In 1918, Congress amended § 4 of the act of June 29, 1906, by adding thereto a seventh subdivision, 40 Stat. 542, 8 U.S.C.A. § 388. This amendatory statute, with that portion thereof which has been added or altered by amendments subsequent to 1918 printed in italics,...