CURTIS, J., Dissenting.
I dissent. The crime charged against the- defendants consists of two elements, (1) thealienage and ineligibility to citizenship of H. Doi, and (2) the possession of agricultural lands by said defendant. The second of these two elements was proven, but there was no evidence whatever in support of the first element—alienage and ineligibility to citizenship of H. Doi. Under section 9a of the Alien Land Act as the alienage and ineligibility to citizenship was alleged in the indictment the burden of proving citizenship or eligibility to citizenship was cast upon the defendants. The conviction of the defendants must stand, therefore, if this section of the Alien Land Act is a valid exercise of legislative power. The majority opinion sustains the validity of the law in question. In the first place it is apparent that there is a marked distinction between the instant case and the case of
People
v.
Osaki,
209 Cal. 169 [286 Pac. 1025]. In that case there was direct proof, and this fact was emphasized throughout the opinion, not only that the defendant Osaki was in the possession of agricultural lands, but also that he was a member of the Japanese race. Under section 9b of the Alien Land Act proof of these facts creates “a
prima facie
presutirption of ineligibility to citizenship”. The constitutionality of section 9b of said act is not questioned. Under that section it is necessary to prove two facts: First, that the defendant is in possession of agricultural lands of this state, and second, that he is a member of a race ineligible to citizenship. Under section 9 a, however, only one of these facts is required to be proven, and that is that the defendant is in possession of agrieul
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tural lands of this state. Prom this one fact under said section the presumption may be drawn that the defendant is a member of a race ineligible to citizenship and that he is also ineligible to citizenship. Referring back to section 9b of the act and the legislative presumption therein created, we find that upon proof that the defendant is a
member
of a
race
ineligible to citizenship, the presumption arises that he is ineligible to citizenship. It is clear that there is a reasonable and rational connection between the fact thus proven and the fact presumed. It is reasonably probable that a member of the Japanese race, for instance, was born in Japan and is, therefore, ineligible to citizenship under the laws of this country. But under section 9a of the act, the only fact necessary to prove is that the defendant is in possession of agricultural lands and the burden of proving that he is ineligible to citizenship is then east upon the defendant, or which amounts to the same thing, the defendant is then presumed to be ineligible to citizenship. Prom the foregoing statement, I think it clearly appears that there is no rational or reasonable connection or relation between the fact proven and the fact presumed. The fact that a person is in possession of agricultural lands of the state does not in the least tend to prove that he is a member of any particular race, much less of a race, the members of which are denied citizenship under our laws. The validity of legislation creating presumptions similar to that provided for by section 9a of said act has frequently been before the courts of this and other jurisdictions with the result that it has uniformly been declared invalid. One of the leading cases upon this subject is that of
McFarland
v.
American Sugar Refining Co., 241
U. S. 79 [36 Sup. Ct. 498, 499, 60 L. Ed. 899]. In that case the legislature of Louisiana had enacted a statute which purported to impose penalties for monopolies and conspiracy in relation to trade. By this statute it was provided that: “Any person engaged in the business of refining sugar within this state who shall systematically pay in Louisiana a less price for sugar than he pays in any other state, shall be
prima facie
presumed to be a party to a monopoly or combination or conspiracy in restraint of trade and commerce, and upon conviction thereof shall be subject to a fine. ...” The Supreme Court of the United States held that this presumption was invalid as being in violation
[298]
of the fourteenth amendment of the Constitution, and speaking through Mr. Justice Holmes said: “As to the presumptions, of course the legislature may go a good way in raising one or in changing the burden of proof, but there are limits. It is ‘essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate’.
(Mobile, J. & K. C.
R.
Co.
v.
Turnipseed,
219 U. S. 35, 43 [55 L. Ed. 78, 80, 32 L. R. A. (N. S.) 226, 31 Sup. Ct. 136, Ann. Cas. 1912A, 463, 2 N. C. C. A. 243].) The presumption created here has no relation in experience to general facts.” "
In
O’Neill
v.
United States,
19 Fed. (2d) 322, the defendant was accused with the violation of the Harrison Anti-Narcotic Act. In that case the defendant was convicted of the offense of selling drugs without paying the special tax provided by the statute. The prosecution relied upon the
prima facie
presumption which was claimed to arise under the statute from the possession of unstamped drugs. In discussing .this presumption, the court said: “The general principle is well recognized that even in criminal prosecutions, congress or a state legislature may with certain limitations enact that when certain facts have been proved they shall be
prima facie
evidence of the existence of the main fact in question. (12 C. J., p. 823, sec. 285.) The limitations are these: There must be some rational connection between the fact proved and the ultimate fact presumed; the inference of the existence of the ultimate fact from proof of the other facts must not be so unreasonable or unnatural as to be a purely arbitrary mandate ...” Further on in the opinion, the court also said: “In our opinion, congress could not reasonably enact that possession of unstamped narcotic drugs should be
prima facie
evidence of a violation of the first penal provision of section 1.”
In the ease of
Simpkins
v.
State,
35 Okl. Cr. 143 [249 Pac. 168], the court had under consideration a statute of Oklahoma providing that if a person driving an automobile had on or about his person any intoxicating liquors that fact would constitute
prima facie
evidence of such person fiaving driven while intoxicated. After discussing the constitutional limitations as to legislation of that character the
[299]
court said: “It. is apparent that the presumption here created violates this limitation, since, in order to draw the conclusion of intoxication from the fact of the driver of .an automobile having intoxicating liquors on his person or in said vehicle, there must first be the inference that the driver had used the intoxicants, and the further inference that he had used them to such an extent that he was under the influence thereof to the extent of intoxication. The presumption of intoxication fixed by the statute is also contrary to the fundamental requirement that the inference or presumption of intoxication arising from the possession of the person or in the vehicle of liquors must be a probable or natural hypothesis or explanation of such possession. The inference between the fact of possession and the presumption of intoxication is too remote.’’
To the same effect are two recent decisions of the Supreme Court of the United States:
Manley
v.
Georgia,
279 U. S. 1 [49 Sup. Ct. 215, 73 L. Ed. 575], where the court held unconstitutional a statute of Georgia which allowed a conviction of fraud upon mere proof of insolvency, on the ground that the statutory presumption was not rational and that the connection between the fact proved and that presumed was not rational; and
Western & Atlantic Railroad
v.
Henderson,
279 U. S. 639 [49 Sup. Ct. 445, 73 L. Ed. 884], holding unconstitutional a statute providing for a shifting of the burden of proof on the issue of negligence upon the mere proof of a collision upon the ground that the statute cannot provide for the shifting of the burden of proof on the basis of a presumption which is arbitrary and irrational.
Many other authorities to the same effect might be cited but we deem the above sufficient for our present purpose. These cases uniformly hold that in order to sustain such a legislative presumption as that created by section 9a of said act, it is absolutely necessary that there be some rational or reasonable connection between the fact proven and the fact presumed. In the present case there is no semblance of such a connection. The mere fact that a defendant is brought into court and proof is made that he is using or is in possession of real property susceptible of producing agricultural products is made the basis of a presumption
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that he is an alien ineligible to citizenship. There can be no possibility of any rational claim that the possession of land of that character by a defendant gives rise to any inference or presumption as to his alienage or citizenship. In at least some of the cases cited there may he said to he some connection, though slight, between the fact proven and the fact presumed. For instance, in the ease of the driver of an automobile with intoxicating liquor in his possession, it might well be said that there is some slight although rather shadowy connection between the fact that the accused had intoxicating liquor in his possession and the fact of his intoxication, yet the court held such legislative presumption to be invalid. But in the ease before ns there is not the slightest connection or relationship between possession of real property and the alienage or citizenship of the person in its possession. According to the unbroken line of authorities, a presumption created by statute and based upon proof of such an unconnected and unrelated fact cannot be sustained as a valid exercise of legislative power.
(State
v.
Lapointe,
81 N. H. 227 [123 Atl. 692, 31 A. L. R 1212].)
Shenk, J., and Preston, J., concurred.