Namba et al. v. McCourt and Neuner
| Decision Date | 29 March 1949 |
| Citation | 185 Or. 579,204 P.2d 569 |
| Parties | NAMBA ET AL. <I>v.</I> McCOURT AND NEUNER |
| Court | Oregon Supreme Court |
1. Under statute, Japanese aliens are not eligible to citizenship. Nationality Act of 1940, § 303, as amended, 8 U.S.C.A. § 703.
Constitutional law — Land owner — Right to use, lease and dispose of land for lawful purposes
2. An owner of Oregon farm land has right under due process and equal protection clauses of 14th Amendment to federal constitution to use, lease and dispose of her farm land for all lawful purposes. U.S.C.A. Const.Amend. 14.
Constitutional law — Japanese alien ineligible to citizenship — Right to earn livelihood
3. A Japanese alien ineligible to citizenship and his citizen son have right under due process and equal protection clauses of 14th Amendment to federal constitution to earn livelihood by following any ordinary occupation. U.S.C.A. Const.Amend 14.
Constitutional law — Classification under 14th Amendment based on real and substantial differences — Nationality Act 1940
4. A classification will not be countenanced under due process and equal protection clauses of 14th Amendment unless classification is based on real and substantial differences which are relevant to purpose which the Act seeks to achieve and the purpose itself is a permissible one, and classifications employed in Federal Naturalization Act cannot be blindly used by the states in their legislation. Nationality Act, of 1940, § 303, as amended, 8 U.S.C.A. § 703; U.S.C.A. Const. Amend. 14.
Aliens — Constitutional law — State legisation on alien land — Acquisition — Conform 14th Amendment to Federal Constitution
5. While the power which state exercises when it permits aliens to acquire land within its confines is its own power, state legislation on subject of alien land acquisition must conform to due process and equal protection clauses of 14th Amendment to Federal Constitution, and to superior powers of federal government over aliens and immigration whenever such powers are pertinent. U.S.C.A. Const. Amend. 14.
Constitutional law — Legislation — Discrimination on account of race, color or creed — Repugnant to federal constitution and to Oregon Bill of Rights
6. Legislation which discriminates against any one on account of race, color or creed, by giving or taking away rights because of race, color or creed is repugnant to due process and equal protection clauses of 14th Amendment to federal constitution and to provisions of Oregon Bill of Rights relating to equality of rights, taking of property and demanding of services, and equality of privileges and immunities. U.S.C.A. Const.Amend. 14; Const. Ore. art. 1, §§ 1, 18, 20.
Constitutional law — Police power — Legislation — Classification — Real and substantial differences — Relevant — Purpose
7. The police power of state protects health, safety, morals and general welfare of people, and legislation enacted under such power must have such purpose, and classification contained in such legislation imposing burdens on some classes and withholding burdens from other classes must be based on real and substantial difference between classes, and such difference must be relevant to purpose which legislation undertakes to achieve.
Constitutional law — Legislation — Class — Burdens — Real and substantial distinguishing characteristics — Color, race, creed not acceptable distinguishing characteristics
8. Legislation may single out a class of persons and place special burdens on such class, provided that class manifests characteristics which to a real and substantial extent distinguish class from all other persons and justify imposition of burden, but color, race and creed are not acceptable distinguishing characteristics.
Aliens — Constitutional law — Alien land law — Denying equal protection and due process — Classification by reason of color, race or creed — Japanese ineligible aliens
9. The alien land law withholding from ineligible aliens not covered by treaty providing otherwise, the right to acquire interest in land in Oregon and the 1945 statute containing provisions ancillary to such law are invalid as denying equal protection and due process by classifying by reason of color, race or creed, where Japanese ineligible aliens were virtually only persons within such law and statute. O.C.L.A. §§ 61-101 to 61-106, 61-108 to 61-111; Laws 1945, c. 436, § 1, 2; Nationality Act of 1940, § 303, 8 U.S.C.A. § 703; Immigration Act, of 1924, § 13(c), 8 U.S.C.A. § 213(c); Treaty of Commerce and Navigation between the United States and Japan, Feb. 21, 1911, 37 Stat. 1504; Charter of the United Nations, art. 55, subd. c, art. 66, 59 Stat. 1031, 1046; Const. Ore. art. 1, §§ 1, 18, 20, 31; U.S.C.A. Const. Amend. 14.
See 3 C.J.S., Aliens, § 12
79 A.L.R., 1366
2 Am. Jur., 476
Appeal from Circuit Court, Multnomah County.
Verne Dusenbery and Allan Hart, of Portland, argued the cause for appellants. With them on the brief were Crum, Dusenbery & Martin and Pendergrass, Spackman & Bullivant, of Portland.
Rex Kimmell, Deputy Attorney General, and Cecil H. Quesseth, Assistant Attorney General, argued the cause for respondents. With them on the brief were George Neuner, Attorney General, and John B. McCourt, District Attorney for Multnomah County.
Before ROSSMAN, Chief Justice,* and LUSK,** BELT, BRAND and HAY, Justices.
This is an appeal by the plaintiffs from a declaratory decree of the Circuit Court which held that our Alien Land Law (§ 61-101 to and including § 61-112, O.C.L.A.) and Oregon Laws 1945, Chapter 436, which contains provisions ancillary to the Alien Land Law, are valid legislation. The purpose of the suit which resulted in the challenged declaratory decree was to secure a holding that both of those acts are unconstitutional.
The appellants present these assignments of error:
1. "The Court erred in declaring that Sections 61-101 to 61-111, O.C.L.A., are constitutional, valid and enforceable."
2. "The Court erred in declaring that Section 1 of Chapter 436, Oregon Laws 1945, is constitutional, valid and enforceable."
3. "The Court erred in declaring that the presumption established by Section 2 of Chapter 436, Oregon Laws 1945, is a proper presumption and is therefore constitutional and valid."
Two of the plaintiffs, Kenji Namba and Florence C. Donald, are American citizens. The third plaintiff is Etsuo Namba, an ineligible alien, who was born in Japan and who is the father of Kenji Namba. Mrs. Donald is the owner of some agricultural land which she wishes to lease to the two Nambas and which they desire to rent. The defendants are the Honorable John B. McCourt, District Attorney for Multnomah County, and the Honorable George Neuner, Attorney General of this State.
The complaint charges that Oregon Laws 1945, Chapter 436, and §§ 61-102 to 61-112, O.C.L.A., violate constitutional provisions which provide for due process of law, the equal protection of law, and grant the Federal Government control over aliens and immigration.
The facts are set forth in the pleadings and an Agreed Statement of Facts. From these sources the following appears: Kenji Namba was born in Multnomah County May 2, 1925, of parents who were born in Japan. He has resided constantly in Oregon except in the period of evacuation and in an additional period of March 16, 1944, to February 6, 1946, while he was a member of the United States Army. While serving in the armed forces he engaged in combat operations in Italy. His discharge from the army was honorable and following it he returned to Multnomah County. The plaintiff, Etsuo Namba, was lawfully admitted in the United States. He, his wife and their son Kenji, are law-abiding, respected people. The plaintiff, Florence Donald, is the owner of a farm in Multnomah County, 62 acres in extent, which is improved with a substantial dwelling house. It stands on the west half of the land. We take the following verbatim from the agreed facts:
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