In Re Nose , 195 Cal. 91 ( 1924 )

Petitioner, a native and subject of Japan and admittedly ineligible to citizenship in the United States of America, is restrained of his liberty by the constable of Los Angeles township, county of Los Angeles, on a warrant issued upon a complaint charging him with a criminal violation of the initiative Alien Land Law adopted by the electors of this state November 2, 1920 (Stats. 1921, p. lxxxiii.) He claims that his detention is illegal.

Specifically the complaint charges that petitioner unlawfully entered into a conspiracy with one Bischof to execute a contract the purpose of which was to give to petitioner the right to possess, use, cultivate, occupy, and have the beneficial use of a body of agricultural lands containing about eight acres situate in the county of Los Angeles, this state, of which Bischof is lessee and Manuella E. Letton is the owner. The contract upon which the charge of conspiracy is based does not differ in material respects from the contract in the case ofJones et al. v. Webb et al., ante, p. 88 [231 P. 560]. It specifically limits the days and hours of labor and fixes a monthly wage of a hundred dollars, and ex industria provides that "as an incentive to the said employee (ineligible alien) to be industrious and efficient, and as an additional wage," Bischof is to pay the alien a sum equal to fifty per cent of the net profits of the crops to be grown and harvested on the premises by the alien. The contract closes with the following paragraph: "It is further provided that in the event the employee (alien) is discharged for cause, or shall abandon this contract, the employer shall be relieved from all liability for said additional wage." The last paragraph is merely one providing for a breach of contract, and in no way changes the true character of the instrument. The contract is one which, if valid, would confer upon the alien the use and benefits arising from the control, occupancy, and enjoyment of real property, which is denied to an ineligible alien by the Alien Land Law of the state.

Certain amendments were made to the original initiative Alien Land Law by the legislature (Stats. 1923, p. 1020), which, petitioner insists, the legislature had no power to enact for the reason that said amendments are not "in furtherance of its purpose" and do not "facilitate its operation," but are, in fact, extensions or additions to the inhibitory provisions of the original act. These amendments consist of the insertion of specific words and terms which in nowise enlarge upon the intent of the act but are in furtherance of its purpose and do in fact facilitate its operation. Section 2 of the original act as amended furnishes a fair example of the extent and character of the amendments. We have emphasized the amendatory language of that section by the use of italics and reproduce it as thus amended:

"All aliens other than those mentioned in section one of this act may acquire, possess, enjoy, use, cultivate, occupy and transfer real property, or any interest therein, in this state,and have in whole or in part the beneficial use thereof, in the manner and to the extent and for the purposes prescribed by any treaty now existing between the government of the United States and the nation or country of which such alien is a citizen or subject, and not otherwise."

Criticism is especially directed at the amendment to section 8. Before amendment it read: "Sec. 8. Any leasehold or other interest in real property less than the fee, hereafter acquired in violation of the provisions of this act by any alien mentioned in Section 2 of this act, . . . shall escheat to the State of California." Following the word "fee" the legislature added a cropping contract clause, to wit, "including cropping contracts which are hereby declared to constitute an interest in real property less than the fee." It was competent for the legislature to include within the inhibitions "cropping contracts." It is not necessary to decide whether or not the legislature had the authority to provide that a "cropping contract" in this class of cases shall impress lands affected thereby with an interest therein in favor of the cropper. For the purposes of this decision the effect of the contract upon real property may be regarded as surplusage.

Section 10 has been so amended as to make its penal provisions clearly applicable to each section of the act in case of a violation thereof. Other amendments were made to the act, but they do not affect the questions raised here.

We conclude that if the privileges of making and carrying out the proposed contract, or to have the right of the possession, enjoyment, and benefits of lands for agricultural purposes is not given to Japanese subjects by treaty or otherwise, and the original Alien Land Act denies the privilege because not given, as held in Porterfield et al. v. Webb etal., 263 U.S. 225 [68 L.Ed. 278, 44 Sup. Ct. Rep. 21], and which doctrine we here affirm, then it must follow that the amendments are in furtherance of the purpose of the act as construed by this court in Porterfield v. Webb et al., ante, p. 71 [231 P. 554], and it was competent for the legislature to amend the act in conformity with the authority therein given. (Sec. 13, Initiative Alien Land Act.)

From what is said in this and cited cases it follows that the writ must be dismissed and the petitioner remanded.

It is so ordered.

Myers, C.J., Lennon, J., Shenk, J., Waste, J., Richards, J., and Lawlor, J., concurred.