In re Kotta

The petitioner, an alen male inhabitant of the state of California of the age o£ about forty-eight years, and a ctizen of the United States of Mexico, is held in custody by the chief of police of the city and county of San Francisco under a complaint charging him with failure to register as required by the terms of the act knwn as the alien poll tax law of 1921, discussed in the

It is upon the portion of this section that we have italicized that the claim of petitioner is based.

All that we have said with relation to this legislation (the Alien Poll Tax Act of 1921) in our opinion in the Terui case is applicable in this case and need not be repeated here, further than to say that the law was enacted solely in the exercise of the power of taxation for the purpose of raising revenue for state purposes, containing no provision whatever attributable to the exercise of the police power of. regulation, and that it imposes on alien inhabitants of the state between certain ages, solely because of their alien character, a tax different in kind from and additional to the taxes required to be paid by all inhabitants, citizens, and aliens alike. No such tax or its equivalent is imposed by our laws on any except alien inhabitants. The law thus imposes an additional burden in the matter of taxation upon such aliens solely because of their alien character, and in this way discriminates against them.

[1] This being the situation, in view of the decisions of the supreme court of the United States, there is no escape

[2] It is settled that the word “person” as used in this amendment includes aliens. It was said in Yick Wo v. Hopkins, 118 U. S. 356 , 369, [ 30 L. Ed. 220 , 6 Sup. Ct. Rep. 1064 , 1070, see, also, Rose’s U. S. Notes] : “The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: ‘Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any difference of race, of color, or of nationality.” The rights of subjects of the emperor of China were here being discussed. In Truax v. Raich, 239 U. S. 33 , [Ann. Cas. 1917B, 283, L. R. A. 1916D, 545, 60 L. Ed. 131 , 36 Sup. Ct. Rep. 7 , see, also, Rose’s U. S. Notes], decided November 1, 1915, the rights of an alien who was a citizen of Austria and resident of the state of Arizona were involved. The supreme court, speaking through Mr. Justice Hughes, said ( 239 U. S. 39 , [Ann. Cas. 1917B, 283, L. R. A. 1916D, 545, 60 L. Ed. 131 , 36 Sup. Ct. Rep. 9 ]): “Upon the allegations of the bill it must be assumed that the complainant, a native of Austria, has been admitted to the United States under the federal law. He. was thus admitted with the privilege of entering and abiding in the United States, and hence -of entering and abiding in any state in the Union. Being lawfully an in- - habitant of Arizona, the complainant is entitled under the fourteenth amendment to the equal protection of its laws. The description-—-‘any person within its jurisdiction’-—as it has frequently been held, includes aliens.” The court then quoted approvingly the portion of the opinion in Yick Wo v. Hopkins, supra, that we 'have quoted above. (See, also, Fraser v. McConway, 82 Fed. 257 .) Petitioner, therefore, though an alien inhabitant of California, is by

The meaning of “the equal protection of the laws” thus guaranteed by the federal constitution to every person within the jurisdiction of a state is not left in doubt by the decisions in so far as such an act as the one here involved is concerned. In Yick Wo v. Hopkins, supra, it is said that “the equal protection of the laws is a pledge to the protection of equal laws.” This was approvingly quoted in Truax v. Raich, supra. In Barbier v. Connolly, 113 U. S. 27 , 31, [ 28 L. Ed. 923 , 5 Sup. Ct. Rep. 357 , 359, see, also, Rose’s U. S. Notes], the supreme court of the United States declared that it was undoubtedly intended thereby “that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and conditionetc. (Italics ours.) As is shown by the opinion in Yick Wo v. Hopkins, supra, the legislation enacted by Congress for the enforcement of the amendment, popularly known as the civil rights statutes, declared that “all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit • of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and shell be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and to no other.” (Italics ours.) What is said in Barbier v. Connolly, supra, and the federal statute just quoted sufficiently shows the subject matter as to which the alien inhabitant is given by the constitution “a pledge of the protection of equal laws,” laws free from discrimination based solely on his alien character. Stated very generally, the requirement is for equal protection and security for all,

That the act does this very thing is clear. The sole distinction between the male inhabitants of California so burdened with the poll tax and those not so burdened, in so far as all matters material to imposition of the tax is concerned, is that the former are aliens and the latter citizens. This is the sole basis of the attempted classification. As was said in Gulf etc. Ry. Co. v. Ellis, supra, ( 165 U. S. 165 , [ 41 L. Ed. 666 , 17 Sup. Ct. Rep. 261 , see, also, Rose’s U. S Notes]): “It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and that in all cases it must appear not only that a classification has been made, but also that it is one based upon some reasonable ground—some difference which bears a just and proper relation to the attempted classification—■ and is not a mere arbitrary selection.” [4] In the case at bar the only difference is such that, in view of the language of section 1 of the fourteenth amendment, relative to equal protection of the laws, it cannot in the nature of things constitute a proper basis for classification, for the plain effect of that section is to forbid any distinction in such a matter as this based on- that fact alone.

It follows from what we have said that the alien poll tax law must be held to be in violation of the terms of section 1 of the fourteenth amendment of the constitution of the United States, which by the express terms of section 2 of article VI thereof is declared to be “the supreme law of the land,” binding on the judges in every state, “anything in the constitution or laws of any state to the contrary notwithstanding.” It is therefore ineffective for any purpose.

The petitioner is discharged from custody.

Shaw, J., Lennon, J., Wilbur, J., Shurtleff, J., Sloane, J., and Lawlor, J., concurred.