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 However, unless altered or repealed by the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.
[Enclosure]
The Attorney General of the State of New York
(Bennett) to the
Governor of New York (Lehman)
[Albany, N. Y.] October 9,
1933.
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,
