Takiguchi v. State, Civil 3665

• Court: Supreme Court of Arizona
• Writing for the Court: ROSS, J.
• Citation: 55 P.2d 802,47 Ariz. 302
• Decision Date: 16 March 1936
• Docket Number: Civil 3665
• Parties: N. TAKIGUCHI, Appellant, v. STATE OF ARIZONA, Appellee

55 P.2d 802

47 Ariz. 302

N. TAKIGUCHI, Appellant,
v.
STATE OF ARIZONA, Appellee

Civil No. 3665

Supreme Court of Arizona

March 16, 1936

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded with directions to dismiss the complaint.

Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellant.

Mr. John L. Sullivan, Attorney General, and Mr. Lloyd J. Andrews, Assistant Attorney General, for the State.

OPINION

[47 Ariz. 303] ROSS, J.

The county attorney of Maricopa county in September of 1934 filed in behalf of and in the name of the state, in the superior court of said county, a complaint alleging that the defendant N. Takiguchi, a subject of the Emperor of Japan, had acquired and come into the possession, use, enjoyment and occupancy of seven separate pieces or parcels of agricultural land (describing them) and was cultivating and preparing the same for crops, and praying that he be restrained from such possession, use, enjoyment, occupation and cultivation of the described agricultural lands, or any other agricultural lands in the state.

The reason assigned in the complaint for applying for an injunction is stated as follows:

"IV. That the defendant, N. Takiguchi, holds no interest in said lands within the knowledge of the County Attorney that is subject to escheat, and that the County Attorney is unable to obtain sufficient evidence of the existence of a conspiracy in the premises to warrant criminal prosecutions, and unless the defendant, N. Takiguchi, is enjoined and restrained, as aforesaid, irreparable damage will be wrought upon the State of Arizona, in that there is no adequate and speedy remedy at law and that it will necessitate a multiplicity of suits."

The defendant demurred to the complaint for want of facts justifying or permitting equitable relief by injunction, and answered that his only connection with the described pieces of land was that he was an employee [47 Ariz. 304] of the owners and that he had no interest whatever in the described premises, or any part thereof.

The court heard the evidence and at its conclusion made findings of fact and conclusions of law and entered judgment against defendant as prayed for in the complaint.

The defendant appeals and specifies several errors.

Our alien land law, adopted in 1921 (chapter 29, Regular Session) is practically a rescript of the California alien land law as originally passed in that state. It appears in its revised form as sections 2782-2790, Revised Code of 1928, and we take it, while [55 P.2d 803] its language has been changed somewhat, its meaning is unchanged. By section 2782 aliens ineligible to become citizens of the United States are inhibited, unless such alien's country and ours have a treaty permitting it, to acquire, possess, enjoy and transfer real property, or any interest therein in Arizona. The defendant Takiguchi is a native of Japan and under the law ineligible to become a citizen of the United States, and there exists no provision in the treaty between Japan and this country conferring upon Japanese subjects the privilege of acquiring or leasing agricultural land or acquiring any interest therein. Porterfield v. Webb, 263 U.S. 225, 44 S.Ct. 21, 68 L.Ed. 278; Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255.

One of the questions raised by defendant is whether injunction may be employed to prevent an ineligible alien from violating the alien land law, when that law itself provides other remedies as adequate or more adequate and speedy than injunction. It is a general rule that the court has no right or power to issue an injunction restraining a party from doing a criminal act, unless the act, if committed, will [47 Ariz. 305] injure or destroy property or some property right of the party complaining or will amount to a public nuisance. State ex rel. La Prade v. Smith, 43 Ariz. 131, 343, 29 P.2d 718, 92 A.L.R. 168; State v. Johnson, 26 N.M. 20, 188 P. 1109. The facts here do not show a situation for the application of the exception to the rule. It must be admitted that the remedies prescribed in the law are much more efficacious than injunctive relief. The state may take the real property of an ineligible alien, or any interest he may acquire therein, from him by a proceeding to escheat it. Section 2787, supra. It may also prosecute an ineligible alien who has conspired with another to effect a transfer of realty, or an interest in realty, to him, criminally and punish him severely. Section 2789, supra. And these remedies may be used concurrently.

Injunction never runs against an accomplished fact. It is preventive in its nature. If the defendant has acquired agricultural land or an interest therein, an injunction cannot affect his status as a landowner. The only thing it might do would be to prevent him from enjoying or occupying or cultivating the land, and then only if the evidence shows he has some interest in the land. In other words, evidence justifying an injunction would sustain a judgment of escheat, or a criminal prosecution for conspiracy, or both.

The law was not intended to prevent ineligible aliens from earning a living in the common occupations of the community. If such were its effect, it would run counter to a long line of decisions by the highest court in the land, one of which, often quoted, is Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 10, 60 L.Ed. 131, Ann. Cas. 1917B 283, L.R.A. 1916D 545, [47 Ariz. 306] which had its origin in Arizona. In that case the court said:

"It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment [14th Amd. to Const. of U.S.]...