State ex rel. Conway v. Ikeda

• Decision Date: 13 December 1943
• Docket Number: Civil 4675
• Citation: 61 Ariz. 41,143 P.2d 880
• Parties: THE STATE OF ARIZONA, by Joe Conway, Attorney General, Intervener-Appellant, v. TSUTOMU IKEDA, Plaintiff-Appellee, JOHNSON-PEARCE COMMERCIAL COMPANY, a Corporation, Defendant
• Court: Arizona Supreme Court

143 P.2d 880

61 Ariz. 41

THE STATE OF ARIZONA, by Joe Conway, Attorney General, Intervener-Appellant, v. TSUTOMU IKEDA, Plaintiff-Appellee, JOHNSON-PEARCE COMMERCIAL COMPANY, a Corporation, Defendant

Civil No. 4675

Supreme Court of Arizona

December 13, 1943

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr. Joe Conway, Attorney General, and Mr. Thomas J. Croaff, Assistant Attorney General, for Appellant.

Mr Alfred C. Lockwood, for Appellee.

OPINION

HALL, Superior Judge.

Tsutomu Ikeda, hereinafter called the plaintiff, brought this action against Johnson-Pearce Commercial Compnay, a corporation, hereinafter called the defendant, to secure a declaratory judgment that Chapter 89, of the Regular Session Laws of 1943, being an act which limits business dealings with "persons whose movements are restricted," is in violation of the Constitutions of Arizona and of the United States, and is therefore invalid.

Said act reads, so far as material, as follows:

"Section 1.... Any person who... pruchases... any personal property... from a person whose movements are restricted by operation of law or by any executive or other order authorized by law... shall give notice of the transaction... by publication not less than three times in a newspaper of general circulation published in the county in which the principal place of business of such person is located. Upon the completion of notice and at least ten days prior to the consummation of the proposed transaction, he shall file in the office of the secretary of state a copy of the notice, accompanied by detailed information regarding the transaction, and a report thereon not later than the fifth day of each month....

"Sec. 2.... Failure to comply with any provision of this act is a misdemeanor, punishable by a fine of... etc."

The plaintiff is a native-born citizen of the United States, of Japanese ancestry, engaged in a truck farming business near Mesa, Arizona. The defendant is a mercantile concern, doing business in the County of Maricopa. The State of Arizona, by Joe Conway, Attorney General, has properly intervened and is the appellant herein.

The facts disclose that the plaintiff has, for many years last past, purchased from the defendant a considerable portion of the supplies necessary for conducting his said business; that subsequent to the effective date of said act, the plaintiff attempted to purchase from defendant 20 pounds of turnip seed to be used in plaiting on plaintiff's farm. The defendant refused to sell the seed to plaintiff without first giving notice as provided in said act, and had it not been for said act it would have sold plaintiff said seed and continued to do business with him as it had in the past. The movements of plaintiff were at said time restricted under the terms of the act.

The plaintiff in his complaint asked the court to determine that said Chapter 89 was void and of no effect for the following reasons:

(a) That said Chapter 89 is contrary to and violates Section 13 of Article 2 of the Constitution of Arizona in that it denies to plaintiff privileges granted to other citizens upon the same terms.

(b) That it is contrary to and violates Section 4 of Article 2 of the Constitution of Arizona in that it deprives plaintiff of property without due process of law.

(c) That it violates Section 1 of Article 14 of the Constitution of the United States in that it abridges the privileges of plaintiff as a citizen of the United States.

(d) That it violates Section 1 of Article 14 of the Constitution of the United States in that it deprives plaintiff of property without due process of law.

(e) That it violates Section 1 of Article 14 of the Constitution of the United States in that it denies to plaintiff the equal protection of the law.

All the above alleged facts are admitted by defendant except it denies that said Chapter 89 is in violation of and contrary to the Constitutions of the State of Arizona, or of the United States. The Attorney General filed a similar answer after his motion to dismiss had been denied by the court.

The trial was had and the lower court entered its findings of fact, conclusions of law and judgment, holding that said act was in violation of both the Constitutions of Arizona and the United States and was, therefore, void and of no effect, and that plaintiff's rights, status and legal relations are in no manner affected thereby. In due time and form an appeal was taken to this court by the state through its Attorney General.

We consider the case upon the legal questions requiring our determination, rather than upon the specific assignments of error.

The plaintiff contends said act is so vague, indefinite and uncertain that it is unenforceable and in violation of Section 4, Article 2, of the State Constitution and of the Fourteenth Amendment of the Constitution of the United States.

With certain enumerated exceptions, the act prohibits without publication in the newspapers, any transactions with a "person whose movements are restricted by operation of law or by any executive or other order authorized by law,..."

The language does not clearly specify what persons are included within its provisions. The real purpose of the act was unquestionably to restrict the movements of persons of Japanese ancestry who had been moved into the state in large numbers by the federal government following the outbreak of war between the United States and Japan. Today the movements of many persons are at certain times restricted by law or lawful order. Members of the armed forces and persons incarcerated for crime, as well as persons in the category of plaintiff, are only a few whose movements are restricted in some manner by lawful order or by the laws of our state or nation.

This court has, at least on two occasions, held criminal statutes unconstitutional because they were vague, indefinite and uncertain. State v. Menderson, 57 Ariz. 103, 111 P.2d 622; State v. Jay J. Garfield Bldg. Co., 39 Ariz. 45, 3 P.2d 983.

In the Menderson case, supra, we said [57 Ariz. 103, 111 P.2d 624]:

"What a statute commands or prohibits in the creation of new crimes should be very definite and easily understood by the common man."

We then quoted with approval the language from other jurisdictions:

"'Laws which create crime ought to be so explicit that all men subject to their penalties may know what act... to avoid.' United States v. Brewer, 139 U.S. 278, 11 S.Ct. 538, 35 L.Ed. 190."

"'If the Legislature undertakes to define by statute a new offense and provide for its punishment, it should express its will in language that need not deceive the common mind. Every man should be able to know with certainty when he is committing a crime.' United States v. Reese, 92 U.S. 214, 23 L.Ed. 563."

"'The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different...