Tashiro v. Jordan

This is an application for a writ of mandate to compel the respondents, as Secretary of State and Deputy Secretary of State, respectively, to file certain articles of incorporation prepared and executed by petitioners and presented by them to respondents as such officers, for the purpose of filing in the office of Secretary of State. The application also asks that the respondents be compelled to issue a certificate of incorporation and to certify and deliver to petitioners three copies of said articles of incorporation. It appears from said application that petitioners are residents of the state of California and county of Los Angeles, and are all Japanese subjects ineligible to become citizens of the United States or state of California; that they have voluntarily associated themselves together for the purpose of forming a corporation under the laws of the state of California to be known as the Japanese Hospital of Los Angeles; and that among the purposes for which this corporation is sought to be organized are those of maintaining a general hospital, to purchase the necessary equipment for the same and to lease land upon which the buildings necessary for the maintenance of said hospital may be erected. Respondents refuse to file these articles of incorporation or to take any official action thereon for the reason, as contended by them, that the treaty between this government and the Japanese government confers no right upon Japanese subjects residing in this country to form a corporation under the laws of this or of any other state of this country. Without this right is given to petitioners by ■ the terms of said treaty, the respondents contend, petitioners are prohibited by the laws of this state, and particularly by the provisions of the Alien Land Law, from forming any corporation, one of the purposes of which is to possess, use, or occupy real property situated in this state.

“Sec. 2. 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.

“Sec. 3. Any company, association or corporation organized under the laws of this or any other state or nation, of which a majority of the members are aliens other than those specified in section one of this act, or in which a majority of the issued capital stock is owned by such aliens, 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 members or stockholders are citizens or subjects, and not otherwise. Hereafter all aliens other than those specified in section one hereof may become members of or acquire shares of stock in any company, association or corporation that is or may be authorized to acquire, possess, enjoy, use, cultivate, occupy and transfer real property, or any interest therein, in this state, 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. ’ ’

[1] It will be observed from a reading of the foregoing sections of the Alien Land Law that by the provisions of section 2 thereof the rights of aliens ineligible to citizenship to possess, use, or occupy real property in this state

“The citizens or subjects 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 citizens or subjects, submitting themselves to the laws and regulations there established. ’ ’

[2] It will be observed that by the terms of this article of said treaty, subjects of Japan are accorded the right, among others, to carry on trade, to lease land for commercial purposes, and “generally to do anything incident to or necessary for trade upon the same terms as native eiti

In the case of California v. Tagami, supra, this court quoted with approval from the following language from the case of De Geofroy v. Riggs, 133 U. S. 258 [ 33 L. Ed. 642 , 10 Sup. Ct. Rep. 295 , see, also, Rose’s U. S. Notes]: “It is a general principle of construction, with respect to treaties, that they shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality and reciprocity between them. As they are contracts between independent nations, in their construction, words are to be taken in their ordinary meaning, as understood in the public law of nations, and not in any artificial or special sense impressed upon them by local law, unless such restricted sense is clearly intended. And it has been held by this court that where a treaty admits of two constructions, one restrictive of rights that may be claimed under it, and the other favorable to them, the latter is to be preferred.” The principle thus enunciated appears to be accepted by the courts generally, and in 38 Ency. of Law and Procedure (Cyc.), 970, it is stated as follows: “Treaties should ordinarily be construed liberally, and so where the treaty admits of two constructions, one restrictive as to the rights that may be claimed under it and the other liberal, the latter is to be preferred.” In

As we have already seen, section 1 of the Treaty of 1911 provides that subjects of Japan residing in this state shall have the right to carry on trade, wholesale and retail, to lease land for commercial purposes and generally do anything incident to or necessary for trade upon the same terms as native citizens or subjects. It is apparent from the reading of this section of the tre'aty that it was the intention of the high contracting parties thereto to give to the subjects of either country residing in the territory of the other the right to carry on trade therein upon the same terms as native subjects or citizens of the latter country. Yet this right to carry on trade is limited to such subjects and purposes as are enumerated in the treaty itself. Subjects of Japan residing in this country and subjects of our own country residing in Japan have only such rights in the country of their domicile as are expressly or by reasonable implication given to them by the treaty. The right to possess real property for agricultural purposes is not mentioned or referred to in the treaty. In fact, the treaty is silent upon this subject. Accordingly, it has been held that no right to possess real property for agricultural purposes is given to subjects of Japan residing in this country and, therefore, a statute prohibiting Japanese subjects residing in this state from possessing real property for agricultural purposes is valid and constitutional (Porterfield v. Webb, 195 Cal. 71 [ 231 Pac. 554 ]; Porterfield v. Webb, 263 U. S. 225 [ 68 L. Ed. 278 , 44 Sup. Ct. Rep. 21 ]; Webb v. O’Brien, 263 U. S. 313 [ 68 L. Ed. 318 , 44 Sup. Ct. Rep. 112 ]). It was further held that the right “to carry on trade” given by the treaty does not give to Japanese subjects residing in this state the privilege of acquiring stock in a corporation owning farm or agricultural land situated in this state (Frick v. Webb, 263 U. S. 326 [ 68 L. Ed. 323 , 44 Sup. Ct. Rep. 115 ]). In this case the

[3] But the right “to carry on trade” in the specific lines of business mentioned in the treaty, such as conducting manufactories, warehouses, and shops and leasing land for commercial purposes, is from the very terms of said treaty as extensive and complete as that employed by native citizens or subjects. It would be difficult to frame language much more comprehensive than that found in the following provision of article I of the treaty—“and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects.” This language follows the provision enumerating the different classes of trade or business in which resident aliens are authorized to engage and must be read in connection with such provision, and as so read it gives to such aliens an equal standing with native citizens or subjects in the conduct of those enumerated classes of business which may be carried on by such aliens. [4] If, then, Japanese subjects residing in this state are authorized to engage in certain lines of business, including that of leasing real property for commercial purposes, and under the terms of the treaty they are further authorized to do anything incident or necessary in the conduct of such business upon the same terms as native citizens or subjects, are they thereby empowered to form a corporation as one of the necessary incidents of transacting such business ? The statutes of this state provide the terms under which native citizens of this country may enter into corporate

[5] Respondents have directed our attention to the provisions of article VII of the Treaty of 1911, which was designed to confer certain rights upon corporations (therein referred to as limited-liability companies or associations) “organized in accordance with the laws of either High Contracting Party and domiciled in the territories of such Party.” Following the granting of such rights said section of the treaty provides that: “The foregoing stipulation has no bearing upon the question whether a company or association organized in one of the two countries will or will not be permitted to transact its business or industry in the other, this permission remaining always subject to the laws and regulations enacted or established in the respective countries or in any part thereof.” It is insisted by respondents that this provision argues most strongly against petitioners’ contention in that it evinces no desire on the part of either party to the treaty of securing freedom of action in the territories of the other for corporations'of its own creation. Therefore, say respondents, “How much less must it have been concerned in the creation by that other of corporations which were to act in this country of their creation?” We are not able to perceive the force of respondents’- argument. The parties to the treaty evidently were not prepared to definitely bind themselves as to the rights of a corporation organized in one country and domiciled therein to transact and carry on business in the other. Hence, they left the question unaffected by the treaty and subject to be regulated by the respective countries. They were, however, prepared to definitely fix and determine the rights of citizens and subjects of one country domiciled in the other, and to this end they set forth these rights distinctly and comprehensively in article I of the Treaty, the terms of which we have already considered and attempted to construe. Article XI of the Treaty also refers to corporations, but clearly this reference has no bearing upon the question to be considered in this proceeding.

It may be that the right to form a corporation such as that which petitioners desire to organize is governed by the local laws of each particular state, and that such right may not be conferred upon alien residents in this state, or, for that matter, upon any class of persons whatsoever, by treaty

Let the writ issue as prayed for.

Langdon, J., Richards, J., Seawell, J., Preston, J., and Waste, C. J., concurred.