Takiguchi v. State

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

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

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 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 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 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, 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.] to secure. [Citing cases.] If this could be refused solely upon the ground of race or nationality, the prohibition of the denial to any person of the equal protection of the laws would be a barren form of words. It is no answer to say, as it is argued, that the act [Laws of Ariz. 1915, Initiative Measure, p. 12] proceeds upon the assumption that 'the employment of aliens, unless restrained, was a peril to the public welfare.'"

Unquestionably the demurrer should have been sustained and the complaint dismissed.

It is perfectly apparent from the record in this case and the two companion cases [Takehara et al. v. State, post, p. 313, 55 P.2d 806;,Morimoto et al. v. State, post, p. 312, 55 P.2d 806] that the county attorney, after investigation, became convinced that the defendant did not own any agricultural land, or any interest in such land, or that if he did he could not prove it, and that he then adopted the proceedings by injunction solely for the purpose of preventing the defendant from working as a farm hand or overseer of farming operations, for that is what the evidence shows the defendant to be.

If he has any interest in agricultural land, the state did not so contend and did not prove it.In affirmance of this statement, we refer to (1) paragraph 4 of the complaint heretofore quoted in this opinion; (2) admission at the trial in Morimoto et al. v. State of Arizona, post, p. 312, 55 P.2d 806, wherein Mr. Howe, attorney for defendants (and also attorney for defendant Takiguchi), addressing his remarks to the attorney for the state, said: "Counsel now avows that he is not proceeding on the theory that the ineligible alien does have any interest whatsoever in this land. I ask counsel if that is the statement" (italics ours), to which the latter replied, "That is the statement. It is contained in every complaint that I filed." (This admission, while made in another case, shows on its face that it applies as well to this case); (3) and, finally, the brief filed in this court by the state containing the following admission:

"According to the evidence appellant at no time had or claimed to have, any interest in any of the crops mentioned in this statement of the case and never had or claimed to have any interest in the premises upon which they grew or were to be grown." (Italics ours.)

Cases are tried and disposed of "according to the evidence," and not in disregard of it, or at least we have always thought that to be the correct and proper rule and the one calculated to accomplish justice and right.

Nor do we think the findings of fact by the court, or those supported by the evidence, present any stronger case for injunction. Such findings are that defendant "was engaged in doing, or causing to be done, work and labor on agricultural lands in the Salt River Valley,"...