38 Cal.2d 718 (1952) 242 P.2d 617

SEI FUJII, Appellant,
v.
THE STATE OF CALIFORNIA, Respondent.

Docket No. L.A. 21149.

Supreme Court of California. In Bank.

April 17, 1952.

*719 J. Marion Wright and Owen E. Kupfer for Appellant.

A.L. Wirin, Fred Okrand and Will Maslow, as Amici Curiae on behalf of Appellant.

*720 Fred N. Howser and Edmund G. Brown, Attorneys General, Everett W. Mattoon, Assistant Attorney General, and John F. Hassler, Deputy Attorney General, for Respondent.

Ralph G. Lindstrom and Lindstrom & Bartlett, as Amici Curiae on behalf of Respondent.

GIBSON, C.J.

Plaintiff, an alien Japanese who is ineligible to citizenship under our naturalization laws, appeals from a judgment declaring that certain land purchased by him in 1948 had escheated to the state. There is no treaty between this country and Japan which confers upon plaintiff the right to own land, and the sole question presented on this appeal is the validity of the California Alien Land Law.^[1]

UNITED NATIONS CHARTER

It is first contended that the land law has been invalidated and superseded by the provisions of the United Nations Charter pledging the member nations to promote the observance of human rights and fundamental freedoms without distinction as to race. Plaintiff relies on statements in the preamble and in articles 1, 55 and 56 of the charter.^[2]

*721 It is not disputed that the charter is a treaty, and our federal Constitution provides that treaties made under the authority of the United States are part of the supreme law of the land and that the judges in every state are bound thereby. (U.S. Const., art. VI) [1] A treaty, however, does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing. In the words of Chief Justice Marshall: A treaty is "to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract — when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the Legislature must execute the contract, before it can become a rule for the court." (Foster v. Neilson (1829), 2 Pet. (U.S.) 253, 314 [7 L.Ed. 415].)^[3]

[2] In determining whether a treaty is self-executing courts look to the intent of the signatory parties as manifested by the language of the instrument, and, if the instrument is uncertain, recourse may be had to the circumstances surrounding its execution. (See Foster v. Neilson, 2 Pet. (U.S.) 253, 310-316 [7 L.Ed. 415]; United States v. Percheman, *722 7 Pet. (U.S.) 51, 58-59 [8 L.Ed. 604]; Jones v. Meehan, 175 U.S. 1, 10-23 [20 S.Ct. 1, 5-10, 44 L.Ed. 49]; Chew Heong v. United States, 112 U.S. 536, 539-543 [5 S.Ct. 255, 256-258, 28 L.Ed. 770]; Cook v. United States, 288 U.S. 102, 119 [53 S.Ct. 305, 311, 77 L.Ed. 641]; cf. Nielsen v. Johnson, 279 U.S. 47, 52 [49 S.Ct. 223, 224, 73 L.Ed. 607].) [3] In order for a treaty provision to be operative without the aid of implementing legislation and to have the force and effect of a statute, it must appear that the framers of the treaty intended to prescribe a rule that, standing alone, would be enforceable in the courts. (See Head Money Cases [Edye v. Robertson], 112 U.S. 580, 598 [5 S.Ct. 247, 254, 28 L.Ed. 798]; Whitney v. Robertson, 124 U.S. 190, 194 [8 S.Ct. 456, 458, 31 L.Ed. 386]; Cook v. United States, 288 U.S. 102, 118-119 [53 S.Ct. 305, 311, 77 L.Ed. 641]; Valentine v. United States, 299 U.S. 5, 10 [57 S.Ct. 100, 103, 81 L.Ed. 5]; Bacardi Corp. v. Domenech, 311 U.S. 150, 161 [61 S.Ct. 219, 225, 85 L.Ed. 98].)

[4] It is clear that the provisions of the preamble and of article 1 of the charter which are claimed to be in conflict with the alien land law are not self-executing. They state general purposes and objectives of the United Nations Organization and do not purport to impose legal obligations on the individual member nations or to create rights in private persons. [5] It is equally clear that none of the other provisions relied on by plaintiff is self-executing. Article 55 declares that the United Nations "shall promote ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion," and in article 56, the member nations "pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55." Although the member nations have obligated themselves to cooperate with the international organization in promoting respect for, and observance of, human rights, it is plain that it was contemplated that future legislative action by the several nations would be required to accomplish the declared objectives, and there is nothing to indicate that these provisions were intended to become rules of law for the courts of this country upon the ratification of the charter.

The language used in articles 55 and 56 is not the type customarily employed in treaties which have been held to be self-executing and to create rights and duties in individuals. *723 For example, the treaty involved in Clark v. Allen, 331 U.S. 503, 507-508 [67 S.Ct. 1431, 1434, 91 L.Ed. 1633, 170 A.L.R. 953], relating to the rights of a national of one country to inherit real property located in another country, specifically provided that "such national shall be allowed a term of three years in which to sell the property ... and withdraw the proceeds ..." free from any discriminatory taxation. (See, also, Hauenstein v. Lynham, 100 U.S. 483, 488-490 [25 L.Ed. 628].) In Nielsen v. Johnson, 279 U.S. 47, 50 [49 S.Ct. 223, 73 L.Ed. 607], the provision treated as being self-executing was equally definite. There each of the signatory parties agreed that "no higher or other duties, charges, or taxes of any kind, shall be levied" by one country on removal of property therefrom by citizens of the other country "than are or shall be payable in each State, upon the same, when removed by a citizen or subject of such state respectively." In other instances treaty provisions were enforced without implementing legislation where they prescribed in detail the rules governing rights and obligations of individuals or specifically provided that citizens of one nation shall have the same rights while in the other country as are enjoyed by that country's own citizens. (Bacardi Corp. v. Domenech, ^[4]311 U.S. 150, 158-159 [61 S.Ct. 219, 224, 85 L.Ed. 98]; Asakura v. Seattle, 265 U.S. 332, 340 [44 S.Ct. 515, 516, 68 L.Ed. 1041]; see Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268, 273-274 [29 S.Ct. 424, 425-426, 53 L.Ed. 792]; Chew Heong v. United States, 112 U.S. 536, 541-542 [5 S.Ct. 255, 257, 28 L.Ed. 770].)

It is significant to note that when the framers of the charter intended to make certain provisions effective without the aid of implementing legislation they employed language which is clear and definite and manifests that intention. For example, article 104 provides: "The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes." Article 105 provides: "1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. 2. Representatives of the *724 Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization." In Curran v. City of New York, 77 N.Y.S.2d 206, 212, these articles were treated as being self-executory. (See, also, Balfour, Guthrie & Co. v. United States, 90 F. Supp. 831, 832.)

The provisions in the charter pledging cooperation in promoting observance of fundamental freedoms lack the mandatory quality and definiteness which would indicate an intent to create justiciable rights in private persons immediately upon ratification. Instead, they are framed as a promise of future action by the member nations. Secretary of State Stettinius, chairman of the United States delegation at the San Francisco Conference where the charter was drafted, stated in his report to President Truman that article 56 "pledges the various countries to cooperate with the organization by joint and separate action in the achievement of the economic and social objectives of the organization without infringing upon their right to order their national affairs according to their own best ability, in their own way, and in accordance with their own political and economic institutions and processes." (Report to the President on the Results of the San Francisco Conference by the Chairman of the United States Delegation, the Secretary of State, Department of State Publication 2349, Conference Series 71, p. 115; Hearings before the Committee on Foreign Relations, United States Senate [Revised] July 9-13, 1945, p. 106.) The same view was repeatedly expressed by delegates of other nations in the debates attending the drafting of article 56. (See U.N.C.I.O. Doc. 699, II/3/40, May 30, 1945, pp. 1-3; U.N.C.I.O. Doc. 684, II/3/38, May 29, 1945, p. 4; Kelsen, The Law of the United Nations [1950], footnote 9, pp. 100-102.)

The humane and enlightened objectives of the United Nations Charter are, of course, entitled to respectful consideration by the courts and legislatures of every member nation, since that document expresses the universal desire of thinking men for peace and for equality of rights and opportunities. The charter represents a moral commitment of foremost importance, and we must not permit the spirit of our pledge to be compromised or disparaged in either our domestic or foreign affairs. [6] We are satisfied, however, that the charter provisions relied on by plaintiff were not *725 intended to supersede existing domestic legislation, and we cannot hold that they operate to invalidate the Alien Land Law.

FOURTEENTH AMENDMENT OF THE FEDERAL CONSTITUTION

[7a] The next question is whether the Alien Land Law violates the due process and equal protection clauses of the Fourteenth Amendment. Plaintiff asserts, first, that the statutory classification of aliens on the basis of eligibility to citizenship is arbitrary for the reason that discrimination against an ineligible alien bears no reasonable relationship to promotion of the safety and welfare of the state. He points out that the land law distinguishes not between citizens and aliens, but between classes of aliens, and that persons eligible to citizenship are given all the rights of citizens regardless of whether they desire or intend to become naturalized. Secondly, he contends that the effect of the statute, as well as its purpose, is to discriminate against aliens solely on the basis of race and that such discrimination is arbitrary and unreasonable.

The issue of the constitutionality of the Alien Land Law is thus again presented to this court,^[5] and we are met at the outset with the contention that a re-examination of the question is foreclosed by decisions of the United States Supreme Court rendered in 1923 upholding the statute. (Porterfield v. Webb, 263 U.S. 225 [44 S.Ct. 21, 68 L.Ed 278]; Webb v. O'Brien, 263 U.S. 313 [44 S.Ct. 112, 68 L.Ed. 318]; Frick v. Webb, 263 U.S. 326 [44 S.Ct. 115, 68 L.Ed. 323]; cf. Terrace v. Thompson, 263 U.S. 197 [44 S.Ct. 15, 68 L.Ed. 255]. See, also, Cockrill v. California (1925), 268 U.S. 258 [45 S.Ct. 490, 69 L.Ed 944].) This objection is a serious one, and we have rejected it only after the most careful deliberation.

In 1946, this court applied the rule of Porterfield v. Webb, 263 U.S. 225 [44 S.Ct. 21, 68 L.Ed. 278], in the case of People v. Oyama, 29 Cal.2d 164 [173 P.2d 794], and in the following year, in Takahashi v. Fish & Game Com., 30 Cal.2d *726 719 [185 P.2d 805], it upheld other legislation which classified aliens on the basis of eligibility to citizenship. Both judgments were reversed upon certiorari in 1948. (Oyama v. California, 332 U.S. 633 [68 S.Ct. 269, 92 L.Ed. 249]; Takahashi v. Fish & Game Com., 334 U.S. 410 [68 S.Ct. 1138, 92 L.Ed. 1478].) These and other recent decisions of the United States Supreme Court, which we shall discuss later, state and apply concepts of rights under the Fourteenth Amendment that are at variance with the opinions in the earlier cases.

The holding of the United States Supreme Court in the Oyama case was that a presumption declared by section 9 of the alien land law^[6] violated the rights of citizens who were children of ineligible aliens and discriminated against such citizens solely because of their parents' ancestry. The court was also confronted with the claim that the general provisions of the land law denied ineligible aliens the equal protection of the laws, and it is significant that the contention was not discussed by the majority opinion although it could easily have been disposed of by citation of Porterfield v. Webb had there been no question in the minds of the members of the court with respect to the correctness of that decision. In rejecting an argument that the presumption was necessary to prevent evasion of the prohibition against ownership of land by ineligible aliens, the court speaking through Chief Justice Vinson said, "This reasoning presupposes the validity of that prohibition, a premise which we deem it unnecessary and therefore inappropriate to re-examine in this case. But assuming, for purposes of argument only, that the basic prohibition is constitutional, it does not follow that there is no constitutional limit to the means which may be used to enforce it." (332 U.S. at p. 646, 68 S.Ct. at p. 275; see, also, footnote 27 to majority opinion.) Four justices concurred in the result on the broad ground that the basic provisions of the alien land law violate the Fourteenth Amendment, stating that previous decisions upholding the statute should be overruled.

Takahashi v. Fish & Game Com., 334 U.S. 410 [68 S.Ct. 1138, 92 L.Ed. 1478], gives further indication that the Porterfield decision is no longer to be regarded as settled law. In *727 the Takahashi case a California statute which denied commercial fishing licenses to "aliens ineligible for citizenship" was invalidated on the ground that it violated the equal protection clause and conflicted with federal immigration power when it prevented ineligible aliens from earning a living as fishermen. In answer to arguments relying by analogy on Porterfield v. Webb and similar cases, the court said: "Assuming the continued validity of those cases, we think they could not in any event be controlling here." (334 U.S. at p. 422, 68 S.Ct. at p. 1144.) There was thus another intimation that the court might not regard those decisions as binding authority if the constitutionality of the alien land laws were again squarely presented for determination.

Our view that we are not precluded from re-examining the question is reinforced by the recent case of Kenji Namba v. McCourt (1949), 185 Ore. 579 [204 P.2d 569], where the Supreme Court of Oregon, in holding invalid the alien land law of that state, reviewed the opinions of the United States Supreme Court and concluded that the Porterfield and related cases had been disapproved by Oyama v. California, 332 U.S. 633 [68 S.Ct. 269, 92 L.Ed. 249], and Takahashi v. Fish & Game Com., 334 U.S. 410 [68 S.Ct. 1138, 92 L.Ed. 1478].

It thus appears that the decisions of the United States Supreme Court do not foreclose, but rather invite, further consideration of the constitutional issues which have been raised.

The leading case involving alien land legislation, Terrace v. Thompson, 263 U.S. 197 [44 S.Ct. 15, 68 L.Ed. 255], upheld a Washington law prohibiting landholding by any alien who had failed to file a declaration of intention to become an American citizen. While that statute did not mention eligibility for naturalization, the court noted that a class composed of nondeclarant aliens necessarily included all ineligible aliens, and it concluded that discrimination between aliens on the basis of ineligibility to citizenship did not violate the equal protection clause. The following reasons were given in support of the decision: (1) "Two classes of aliens inevitably result from the naturalization laws, — those who may and those who may not become citizens. The rule established by Congress on this subject, in and of itself, furnishes a reasonable basis for classification in a state law withholding from aliens the privilege of land ownership ..." (2) "It is obvious that one who is not a citizen and cannot *728 become one lacks an interest in, and the power to effectually work for the welfare of, the state, and, so lacking, the state may rightfully deny him the right to own and lease real estate within its boundaries." (3) "If one incapable of citizenship may lease or own real estate, it is within the realm of possibility that every foot of land within the state might pass to the ownership or possession of noncitizens." It was also said that the "quality and allegiance of those who own, occupy and use the farm lands within its borders are matters of highest importance and affect the safety and power of the State itself." (263 U.S. at pp. 220-221, 44 S.Ct. at p. 20.)

Porterfield v. Webb, 263 U.S. 225 [44 S.Ct. 21, 68 L.Ed. 278], upholding the constitutionality of the California alien land law, was decided the same day as Terrace v. Thompson and was held to be controlled by that decision. The court, in a short opinion, reasoned as follows: The prohibited class under the Washington law consisted of nondeclarant aliens; this necessarily included all aliens ineligible for citizenship, which was the prohibited class defined by the California act; and the failure of California to extend the prohibition to eligible aliens who failed to declare their intent to become citizens could not be said to be arbitrary or unreasonable.

The foregoing summary covers all the grounds upon which our alien land law has heretofore been upheld by the United States Supreme Court. As we shall see, Porterfield v. Webb, 263 U.S. 225 [44 S.Ct. 21, 68 L.Ed. 278], has been greatly weakened by subsequent decisions, and it is settled that the authority of an older case may be as effectively dissipated by a later trend of decision as by a statement expressly overruling it. (See, for example, Olsen v. Nebraska, 313 U.S. 236, 244-246 [61 S.Ct. 862, 864-865, 85 L.Ed. 1305, 133 A.L.R. 1500].) Constitutional principles declared in recent years are irreconcilable with the reasoning of the earlier cases and lead us to conclude that the statute violates the equal protection clause of the Fourteenth Amendment.

[8] There can be no question that the rights to acquire, enjoy, own and dispose of property are "among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment," and that the power of a state to regulate the use and ownership of land must be exercised subject to the controls and limitations of that amendment. (Shelley v. Kraemer, 334 U.S. 1, 10 [68 S.Ct. 836, 841, 92 L.Ed. 1161, 3 A.L.R.2d 441]; see Terrace v. *729 Thompson, supra, 263 U.S. 197, 218 [44 S.Ct. 15, 19, 68 L.Ed. 255].)

The California act, in the absence of treaty, withholds all interests in real property from aliens who are ineligible to citizenship under federal naturalization laws, and the Nationality Code limits the right of naturalization to certain designated races or nationalities, excluding Japanese and a few racial groups comparatively small in numbers. (8 U.S.C.A. § 703.) [7b] Congress, however, at least prior to 1924,^[7] saw fit to permit aliens who are ineligible for citizenship to enter and reside in the United States despite the fact that they could not become naturalized, and such aliens are entitled to the same protection as citizens from arbitrary discrimination. (Yick Wo v. Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220]; Truax v. Raich, 239 U.S. 33 [36 S.Ct. 7, 60 L.Ed. 131].) Accordingly, the statute cannot be sustained unless it can be shown that the public interest requires limitation of their rights to acquire and enjoy interests in real property.

By its terms the land law classifies persons on the basis of eligibility to citzenship, but in fact it classifies on the basis of race or nationality. This is a necessary consequence of the use of the express racial qualifications found in the federal code. Although Japanese are not singled out by name for discriminatory treatment in the land law, the reference therein to federal standards for naturalization which exclude Japanese operates automatically to bring about that result.^[8] This was recognized in Oyama v. California, supra, 332 U.S. 633, 640, 644 [68 S.Ct. 269, 272, 274, 92 L.Ed. 249], where Chief Justice Vinson, speaking for a majority of the court, concluded that the alien land law as applied in that case discriminated against a Japanese-American citizen, and that the "only basis for this discrimination ... was the fact that his father was Japanese and not American, Russian, Chinese, or English." It was on this ground that the court invalidated a presumption contained in the California land law, stating that "only the most exceptional circumstances can excuse discrimination on that basis in the face of the *730 equal protection clause." (332 U.S. at p. 646, 68 S.Ct. at p. 275.)

Subsequent to the Oyama case the Supreme Court condemned the enforcement by state courts of covenants which restrict occupancy of real property on the basis of race or color, and it expressly pointed out that statutes incorporating such restrictions would violate the Fourteenth Amendment. (Shelley v. Kraemer, 334 U.S. 1, 11 [68 S.Ct. 836, 841, 92 L.Ed. 1161, 3 A.L.R.2d 441].) While the persons discriminated against in the Shelley and Oyama cases were citizens, it is clear, as we have seen, that the Fourteenth Amendment protects aliens as well as citizens from arbitrary discrimination. (Yick Wo v. Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220]; Truax v. Raich, 239 U.S. 33 [36 S.Ct. 7, 60 L.Ed. 131].)

[9] As a general rule a legislative classification will be sustained if it is reasonable and has a substantial relation to a legitimate object, and the existence of any reasonably conceivable state of facts sufficient to uphold the legislation will be presumed. (Lelande v. Lowery, 26 Cal.2d 224, 232 [157 P.2d 639, 175 A.L.R. 1109]; Sacramento M.U. Dist. v. Pacific Gas & Elec. Co., 20 Cal.2d 684, 693 [128 P.2d 529].) [10] Where, however, as here, the classification is on the basis of race, it is "immediately suspect" and will be subjected "to the most rigid scrutiny." (Korematsu v. United States, 323 U.S. 214, 216 [65 S.Ct. 193, 194, 89 L.Ed. 194].) In Perez v. Sharp, 32 Cal.2d 711, 719 [198 P.2d 17], Justice Traynor pointed out that "Race restrictions must be viewed with great suspicion, for the Fourteenth Amendment `was adopted to prevent state legislation designed to discriminate on the basis of race or color' (Railway Mail Ass'n v. Corsi, 326 U.S. 88, 94 [65 S.Ct. 1483,