The Secretary of State to the Chargé in Japan ( Caffery )
Sir: Referring to the Department’s telegrams Nos. 251 of November 17 and 255 of November 23, 1923, in regard to the recent decisions of the Supreme Court upholding the constitutionality and validity under the treaty with Japan of the Alien Land Laws of California and Washington, the Department encloses a copy of each of the following decisions:18 Terrace et al. v. Thompson; Porterfield et al. v. Webb et al.; Webb et al. v. O’Brien et al.; Frick et al. v. Webb.
In connection with these decisions of the Supreme Court of the United States it is interesting to note that the Supreme Court of the State of California has ruled that the provisions of the Alien Land Law relating to guardianship matters are unconstitutional. These provisions were not considered or passed upon by the Supreme Court of the United States in rendering the above mentioned decisions. The following statement is quoted from the opinion delivered by the Supreme Court of the State of California in the case of In re Estate and Guardianship of Yano,19 decided by that Court on May 1, 1922:
“Our law provides that the father or mother of a minor child less than fourteen years of age, if competent, is entitled to be appointed guardian of such child in preference to any other person. (Code Civ. Proa, sec. 1751.) This law is general in terms. It is not confined to citizens in its application, but purports to confer the right upon all residents regardless of citizenship. The initiatory act of 1920 (Stats. 1921 lxxxiii, sec. 4), by its terms, forbids the appointment of any alien not eligible to citizenship as guardian of a minor with respect to property of the minor of a character which such alien cannot acquire for himself, that is to say, with respect to agricultural land belonging to such minor. Its effect is that a citizen of Japan who is the parent of a native-born child cannot be appointed guardian of the property of the child where that property consists entirely of agricultural land. This restriction is not put upon a citizen of any country whose citizens are eligible to citizenship here, nor upon any other class of residents of this state who [Page 465] are not citizens thereof. It is clearly a discrimination against citizens of Japan residing in this state.20
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“The object sought to be attained by these statutory provisions, that is, to discourage the coming of Japanese into this state, may be a proper one, and may be even desirable for the promotion of the welfare and progress of the state. The court can only consider its validity under the limitations of the Constitution. A similar object prompted the adoption of the anti-Chinese provisions of the Constitution of 1879, which, so far as they were effectual, were declared invalid by the federal courts. This entire question is international in character and is a matter properly to be disposed of by the Federal Government. Appeal for its adjustment should be made to Congress, rather than to attempt to accomplish it by discriminatory legislative measures of the state.
“Our conclusion is that the provisions of the initiative act of 1920 forbidding the appointment of an alien resident, ineligible to citizenship, as guardian of the farming land of his native-born child, and authorizing the removal of such parent, if previously appointed as such guardian, are invalid.”
I am [etc.]