WEBB, Atty. Gen. of California, et al. v. O'BRIEN et al.

This is a suit brought by the appellees to enjoin the Attorney General of California and the district attorney of Santa Clara county from instituting any proceedings to enforce the California Alien Land Law1 against them.

O'Brien is a citizen and resident of California, and owns 10 acres of agricultural land in the county of Santa Clara. Inouye is a capable farmer, and is a Japanese subject living in California. O'Brien and Inouye desire to enter into a cropping contract covering the planting, cultivating, and harvesting of crops to be grown on the land. They allege that the execution of such a contract is necessary, in order that the owner may receive the largest return from the land, and that the alien may receive compensation therefrom; that the Attorney General and district attorney have threatened to and will enforce the act against them if they execute the contract, and will forfeit or attempt to forfeit the land by an escheat proceeding, and will prosecute them criminally for violating the act. They aver that the act is so drastic, and the penalties for its violation are so great, that neither of them may execute the contract even for the purpose of testing its validity and its application thereto, and that, unless the court shall determine the validity of the act and its application, they will be compelled to submit to it, whether valid or invalid, and to the appellants' interpretation of it, and so be deprived of their property without due process of laws and denied the equal protection of the laws in contravention of the Fourteenth Amendment.

Appellees applied for an interlocutory injunction. The matter was heard by three judges, as provided in section 266 of the Judicial Code (Comp. St. § 1243). The injunction was granted, and the Attorney General and district attorney appealed.

O'Brien, who is a citizen, has no legal right to enter into the proposed contract with Inouye, who is an ineligible Japanese alien, unless the latter is permitted by law to make and carry out such a contract. At common law, aliens, though not permitted to take land by operation of law, may take by the act of the parties; but they have no capacity to hold against the state, and the land so taken may be escheated to the state. See Fairfax's Devisee v. Hunter's Lessee, 7 Cranch. 603, 609, 619, 620, 3 L. Ed. 453; Doe ex dem. Governeur's Heirs v. Robertson, 11 Wheat. 332, 355, 6 L. Ed. 488; Phillips v. Moore, 100 U. S. 208, 212, 25 L. Ed. 603; Atlantic & Pacific Railroad v. Mingus, 165 U. S. 413, 431, 17 Sup. Ct. 348, 41 L. Ed. 770. In the absence of a treaty to the contrary, the state has power to deny to aliens the right to own land within its borders. Terrace et al. v. Thompson, 263 U. S. 197, 44 Sup. Ct. 15, 68 L. Ed. ——; Hauenstein v. Lynham, 100 U. S. 483, 484, 488, 25 L. Ed. 628; Blythe v. Hinckley, 127 Cal. 431, 59 Pac. 787, affirmed 180 U. S. 333, 340, 21 Sup. Ct. 390, 45 L. Ed. 557; In the Matter of Okahara (decided June 28, 1923; Cal. Sup.) 216 Pac. 614. The provision of the act which limits the privilege of ineligible aliens to acquire real property or any interest therein to that prescribed by treaty is not in conflict with the Fourteenth Amendment. Terrace et al. v. Thompson, supra; Porterfield v. Webb, 263 U. S. 225, 44 Sup. Ct. 21, 68 L. Ed. ——; In the Matter of Okahara, supra. The treaty between the United States and Japan (37 Stat. 1504-1509) does not confer upon the citizens or subjects of either in the territories of the other the right to acquire, possess or enjoy lands for agricultural purposes. Terrace et al. v. Thompson, supra; In the Matter of Okahara, supra.

By the proposed cropping contract, Inouye is given the right for a term of four years to plant, cultivate and harvest crops berries and vegetables—on the land, and to be free from interference by the owner, who undertakes to protect him during the term against interference by any other person. He is entitled to housing for himself, and is granted the right to employ others to work on the land, and to give to them free ingress and egress and the right to live on the land. He is entitled to one-half of all crops grown on the land during the term, to be divided after they are harvested and before removal from the land, and is given a reasonable time after the expiration of the term to remove his share of the crops. He is required to accept his share of the crops as reimbursement for expenditures made to carry on the farming operations, and as his only return from the undertaking. Assuming that the proposed arrangement does not amount to a leasing or to a transfer of an interest in real property, and that it includes the elements of a contract of employment (In the Matter of Okahara, supra), we are of opinion that it is more than a contract of employment, and that, if executed, it will give to Inouye a right to use and to have or share in the benefit of the land for agricultural purposes. And this is so, notwithstanding other clauses of the contract to the effect that the general possession of the land is reserved to the owner, that the cropper shall have no interest or estate whatever in the land, that he is given one-half of all crops grown as compensation for his services and labor, and that division of the crops is to be made after they are harvested and before their removal from the land.

The treaty grants liberty to own or lease and occupy houses, manufactories, warehouses, and shops, and to lease land for residential and commercial purposes.2 Section 2 of the act extends the privilege to acquire, possess, enjoy, and transfer real property or any interest therein only in the manner and to the extent and for the purposes prescribed in the treaty. The treaty given no permission to enjoy, use, or have the benefit of land for agricultural purposes. The privileges granted by the act are carefully limited to those prescribed in the treaty. The act as a whole evidences legislative intention that ineligible aliens shall not be permitted to have or enjoy any privilege in respect of the use or the benefit of land for agricultural purposes. And this view is supported by the circumstances and negotiations leading up to the making of the treaty. See Terrace et al. v. Thompson, supra; Same v. Same (D. C.) 274 Fed. 841, 844, 845. As applied to this case, the act may be read thus:

'Ineligible aliens may own or lease houses, manufactories, warehouses and shops, and may lease land for residential and commercial purposes. These things, but no possession or enjoyment of land otherwise, are permitted.'

The term of the proposed contract, the measure of control and dominion over the land which is necessarily involved in the performance of such a contract, the cropper's right to have housing for himself and to have his employees live on the land, and his obligation to accept one-half the crops as his only return for tilling the land clearly distinguish the arrangement from one of mere employment. The case differs from Truax v. Raich, 239 U. S. 33, 36 Sup. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283. In that case, a statute of Arizona making it a criminal offense for an employer of more than five workers, regardless of kind or class of work or sex of workers, to employ less than 80 per cent. native-born citizens of the United States was held to infringe the right, secured by the Fourteenth Amendment, of a resident alien to work in a common occupation cooking in a restaurant. The right to make and carry out cropper contracts such as that before us is not safeguarded to ineligible aliens by the Constitution. A denial of it does not deny the ordinary means of earning a livelihood or the right to work for a living. The practical result of such contract is that the cropper has use, control, and benefit of land for agricultural purposes substantially similar to that granted to a lessee. Conceivably, by the use of such contracts, the population living on and cultivating the farm lands might come to be made up largely of ineligible aliens. The allegiance of the farmers to the state directly affects its strength and safety. Terrace et al. v. Thompson, supra. We think it within the power of the state to deny to ineligible aliens the privilege so to use agricultural lands within its borders.

The decision of the Supreme Court of California in In the Matter of Okahara, supra, a habeas corpus case, does not support the appellees' contention. In that case an ineligible Japanese was held on a warrant charging him with conspiracy to effect a transfer of real property in violation of section 10 of the Alien Land Law. The gravamen of the offence charged was that Okahara, in furtherance of the conspiracy, executed a contract with another, whereby the latter transferred to him for a term of five years an interest in 20 acres of agricultural land. The only question before the court in that case was whether the contract amounted to a transfer of real property or of an interest therein in violation of section 10. The court said:

'* * * The instrument before us cannot be characterized as a lease or transfer of any interest in real property because it lacks many of the essential elements of a lease, while on the other hand it bears all the characteristics of an agreement of hiring. But if it cannot be said to be an agreement of employment pure and simple, it cannot under any rule of construction be held to be more than a cropping contract.'

After referring to the terms of the contract and reviewing authorities, it said:

'The argument that the law forbids the making of a contract of employment or agreement to till the soil on shares can only be sustained by adopting the theory that the particular agreement under consideration transfers an interest in land.'

The court held that the contract did not violate section 10 and discharged Okahara. The contract in that case differs in important particulars from the one before us; but, in the view we take of this case, we need not determine whether, within the meaning of the act, the contract between O'Brien and Inouye, if executed, would effect a transfer of an interest in real property. The question in this case is not whether the proposed contract is prohibited by section 10, but it is whether appellees have shown that they have a right under the Constitution or treaty to make and carry out the contract, and are entitled to an interlocutory injunction against the officers of the state. A negative answer must be given.

The privilege to make and carry out the proposed cropping contract, or to have the right to the possession, enjoyment and benefit of land for agricultural purposes as contemplated and provided for therein, is not given to Japanese subjects by the treaty. The act denies the privilege because not given by the treaty. No constitutional right of the alien is infringed. It therefore follows that the injunction should have been denied.

The order appealed from is reversed.

Mr. Justice McREYNOLDS and Mr. Justice BRANDEIS think there is no justiciable question involved and that the case should have been dismissed on that ground.

Mr. Justice SUTHERLAND took no part in the consideration or decision of this case.