711.622/163

The Counsel to the Governor of New York (Poletti) to the Secretary of State

Sir: Upon receipt of your letter of August 22nd88 informing the Governor that the Department of State had received a communication from the German Embassy in Washington appertaining to the possible conflict between the provisions of Section 84 of the Alcoholic Beverage Control Law of the State of New York and Article I of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany of December 8, 1923, the Governor transmitted your letter to the Attorney General of the State for his views.

The Attorney General has recently informed the Governor that he has considerable doubt as to the validity of the provisions of Section 84 of the Alcoholic Beverage Control Law. Two photostatic copies of his opinion are enclosed. However, unless altered or repealed by the Legislature that convenes in January, 1934, those provisions, as you know, stand until declared invalid by a court of proper jurisdiction. But in view of the opinion of the Attorney General, it is most likely that the provisions of Section 84 of the Alcoholic Beverage Control Law will be altered during the coming session of the Legislature.

It is impossible for the Governor to inform you whether the Legislature in enacting those provisions of law considered their possible conflict with the rights granted under various commercial treaties between the United States and foreign countries.

Respectfully yours,

Charles Poletti
[Enclosure]

The Attorney General of the State of New York (Bennett) to the Governor of New York (Lehman)

My Dear Governor: Receipt is acknowledged of your communication under date of August 24, 1933, with the accompanying letter from the Department of State at Washington under date of August 22, 1933, in which you inquire concerning the validity of that provision of §84 of the Alcoholic Beverage Control Law which denies a license to a person who is not a citizen of the United States. The same question is [Page 538]raised in a communication received from the Chairman of the Alcoholic Beverage Control Board under date of August 2nd on a complaint raised by the Consulate General of Japan. A further communication from your office under date of September 14th presents a communication from the Secretary of State at Washington, D. C. in which there is questioned the validity of Chapters 38 and 296 of the Laws of 1933 which place a similar restriction upon the licensing of chauffeurs who are not American citizens.

The answer to one of these questions will answer all of them since they all revolve upon a consideration of an identical conflict between State law and Federal treaty. Subdivision 3 of §84 of the Alcoholic Beverage Control Law which it is claimed violates the express provisions of certain treaties, reads as follows:

Persons forbidden to traffic in beer. No person hereafter described in this section shall receive a license to traffic in beer.

. . . . . . . . . . . . . .

(3) A person who is not a citizen of the United States.”

The parallel provision in the amendments to the Vehicle and Traffic Law reads as follows:

“1–a. Citizenship required. On and after the first day of June, nineteen hundred thirty-three, and until the first day of June, nineteen hundred thirty-nine, no chauffeur’s license shall be issued to any applicant twenty-one years of age or over, nor, if issued, shall be valid, unless the applicant therefor shall be an American citizen, or shall have within six years preceding the date of the issue of such license, filed an official declaration of his intention to become a citizen of the United States. On and after the first day of June, nineteen hundred thirty-nine, no chauffeur’s license shall be issued to any applicant twenty-one years of age, or over, nor, if issued, shall be valid, unless the applicant therefor shall be an American citizen. The provisions of this subdivision shall not apply to a person who because of his nationality is precluded from becoming a citizen of the United States, provided he shall have resided in the United States continuously for five years prior to the first day of June, nineteen hundred thirty-three and shall have been licensed in this state as a chauffeur during three full years prior to said first day of June, nineteen hundred thirty-three, nor to a chauffeur employed by an alien while such alien is sojourning or traveling in this country for a period not exceeding six months.” (To the same effect, Ch. 38, Laws 1933).89

The Treaty between the United States and Germany, entered into December 8, 1923, contains in Article I thereof the following provision:

“The nationals of each of the High Contracting Parties shall be permitted to enter, travel and reside in the territories of the other; to exercise liberty of conscience and freedom of worship; to engage in professional, [Page 539]scientific, religious, philanthropic, manufacturing and commercial work of every kind without interference; to carry on every form of commercial activity which is not forbidden by the local law; to own, erect or lease and occupy appropriate buildings and to lease lands for residential, scientific, religious, philanthropic, manufacturing, commercial and mortuary purposes; to employ agents of their choice, and generally to do anything incidental to or necessary for the enjoyment of any of the foregoing privileges upon the same terms as nationals of the state of residence or as nationals of the nation hereafter to be most favored by it, submitting themselves to all local laws and regulations duly established.”

The parallel applicable provision of the Treaty between the United States and Japan, entered into February 21, 1911,90 reads as follows:

“The subjects or citizens of each of the High Contracting Parties shall have liberty to enter, travel and reside in the territories of the other, to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native subjects or citizens, submitting themselves to the laws and regulations there established. … The subjects or citizens of each of the High Contracting Parties shall receive, in the territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or may be granted to native subjects or citizens, on their submitting themselves to the conditions imposed upon the native subjects or citizens.”

The conflict between these treaty provisions and the requirements of the statutes of the State of New York which have been above cited is apparent. Under the Constitution of the United States aliens are entitled to equal protection of the laws and also from deprivation of life, liberty and property without due process of law.

  • Yick Wo. v. Hopkins, 118 U.S. 369 [356]
  • People v. Crane, 214 N. Y. 154;
    affirmed 239 U.S. 195
  • Terrace v. Thompson, 263 U.S. 197

The question which is raised is the reasonableness of the exercise of the police power of the State to place such restrictions upon the licensing of an occupation or of the sale of beer in safeguarding the health and welfare of the State itself. In the face of treaty provisions such as those cited may there be a classification of aliens based on alienage and is such classification permissible? Investigation of the authorities indicates that they are uniformly against the validity of such provisions.

The police power of the State is not restricted in its regulations for the peace, health, safety and good order of its people by the constitutional [Page 540]protection of aliens. Certain cases would indicate that a denial of the privilege of engaging in a business which the State may create or regulate by license does not contravene such constitutional protection.

  • Commonwealth v. Hana, 195 Mass. 263 [262];
    (Peddling)
  • Bloomfield v. State, 86 Ohio St., 253;
    (Intoxicating liquors)
  • Trageser v. Gray, 73 Md. 250;
    (Intoxicating liquors)
  • Miller v. Niagara Falls, 207 A.D. 798;
    (Soft drinks)

The above cases, however, do state that such classification when made must have a reasonable relationship to the welfare of the community to justify the discrimination. In the Miller case the fact that such a business afforded opportunity for violations of law rendered it necessary for the protection of the welfare of the community to exclude those not attached to the institutions and laws of the country and of the State through citizenship. The effect of treaty provisions, however, adjusting the rights of aliens of friendly countries was not brought into question in those cases in the State courts.

When trade obligations and treaty rights secured to aliens have been brought into question the holding of the courts has been uniform that the guaranties of the treaty are paramount to inconsistent State or municipal provisions of law. No longer does it become apparent that disqualification on the grounds of non-citizenship is a valid exercise of the police power where there is a specific treaty obligation guaranteeing to such aliens the right to engage in business activities on the same basis as the citizens of this country.

It is not necessary to enter into any extensive study or research into the treaty-making powers of the President under the Constitution to establish this fact. Treaties are declared to be the supreme law of the land, binding in every State (Fed. Constitution, Art. VI).

In Ware v. Hylton, 3 Dallas (U.S.) 199 at 236, Mr. Justice Chase in 1796 declared what is still the law:

“If doubts could exist before the establishment of the present national government, they must be entirely removed by the 6th article of the Constitution, which provides That all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution, or laws, of any State to the contrary notwithstanding.’ There can be no limitation on the power of the people of the United States. … A treaty cannot be the supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way.”

[Page 541]

The right to make these treaties and their force and effect have never been denied.

  • Hamilton v. Erie R. R. Co., 219 N. Y. 443 [343]
    Writ of Error dismissed; 248 U.S. 369
  • Techt v. Hughes, 229 N. Y. 222
    Certiorari denied, 254 U.S. 643
  • Santovincenzo v. Egan, 284 U.S. 30
    Nielson v. Johnson, 279 U.S. 47

What would appear to be a case directly in point on the issue before us is Asakura v. Seattle, 265 U.S. 332. The provisions of the same treaty now invoked by the Japanese Consulate General was there raised. The court held that the business of a pawnbroker was a “trade” within the meaning of the treaty and that a local ordinance which forbade the issuance of a license to an alien violated the treaty provisions and was therefore void. This with due consideration of the fact that the business of a pawnbroker is one for proper regulation and licensing by the State under the same power by which it regulates and licenses the sale of alcoholic beverages or the licensing of chauffeurs.

The court in the Asakura case said at page 341:

“The rule of equality established by it cannot be rendered nugatory in any part of the United States by municipal ordinances or state laws. It stands on the same footing of supremacy as do the provisions of the Constitution and laws of the United States.”

The cases involving the leasing of agricultural lands do not establish any contrary principle.

  • Terrace v. Thompson, 263 U.S. 197
  • Porterfield v. Webb, 263 U.S. 225
  • Todok v. Union State Bank, 281 U.S. 449

Discrimination in the administration of inheritance taxes against nonresident aliens was held to be a violation of a treaty with Denmark in Nielson v. Johnson, 279 U.S. 47. See also In re Ah Chong, 2 Fed. 733; In re Ah Fong, 1 Fed. Cases No. 102. …

The principle in People v. Crane, 214 N.Y. 154; affirmed 239 U.S. 195, and Heim v. McCall, 239 U.S. 175, does not run contra to the conclusions reached in the preceding cases involving treaty obligations.

The conclusion, therefore, must necessarily follow that the provisions of the Vehicle and Traffic Law and of the Alcoholic Beverage Control Law against which complaint is made on behalf of the citizens of friendly nations living in this State run contra to the treaty obligations entered into by the United States with these nations and therefore may not be enforced. They have been held to interfere with the personal right of an alien, which by treaty is insured to him, to engage in commerce, trade. [Page 542]business or labor on the same terms as citizens and to pursue a vocation even though it may require the exercise of a licensing provision.

Very truly yours,

John J. Bennett, Jr.
  1. Not printed.
  2. The preceding quotation is taken from ch. 296, which amends ch. 38, Laws 1933.
  3. Treaty of Commerce and Navigation between the United States and Japan, signed at Washington, February 21, 1911, Foreign Relations, 1911, p. 315.