State v. Rogers

Baldwin, J. delivered the opinion of the Court Terry, C. J. concurring.

This is an information of escheat, filed by the Attorney-General, to establish the State’s interest in certain real estate to which it is alleged the State has title, in consequence of the alienage of those who would otherwise be entitled.

It is conceded by the Attorney-General, that this claim of the State must fail, if the Act of the Legislature of April 19th, 1856, entitled “An Act relative to Escheated Estates,” (Stat. of 1856, 137,) be constitutional. That Act provides :

“ Section 1. Aliens shall hereafter inherit, and hold by inheritance, real and personal estate, in as full a manner as though they were native-born citizens of this or the United States; provided, that no non-resident foreigner, or foreigners, shall hold or enjoy any real estate, situated within the limits of the State of California, five years after the time such non-resident foreigner, or foreigners, shall inherit the same; but in case such non-resident foreigner, or foreigners, do not appear or claim such estate within the period in this section before mentioned, then such estate shall be sold, upon information of the Attorney-General, according to law, and the proceeds deposited in the treasury of said State, for the benefit of such non-resident foreigner, or foreigners, or their legal representatives—to be paid to them by the Treasurer of said State, at any time within five years thereafter, when such non-resident foreigner, or foreigners, or their representatives, shall produce evidence, to the satisfaction of the Treasurer and Controller of State, that such foreigner, or foreigners, are the legal heirs to, and entitled to inherit such estate, which evidence, together with the joint order of the said Treasurer and Controller, shall be placed on file in the office of the Treasurer, and shall be -to him a voucher for any payments made by him under the provisions of this Act; and in the event that such non-resident foreigner, or foreigners, do not appear or claim said estate or pro[165]ceeds, and produce said evidence within said extended term of five years, then said estate or proceeds shall be and become the property of the State, and shall be by the Treasurer of State placed to the credit of the School Fund.

Sec. 2. All Acts and parts of Acts conflicting with the provisions of this Act are hereby repealed.”

The constitutional provision, Sec. 17, Art. I, provides : “Foreigners who are, or may hereafter bpcome, bona fide residents of this State, shall enjoy the same rights in respect to the possession, enjoyment, and inheritance, of property as native-born citizens.” This provision was construed, recently, by this Court, in the case of Farrell v. Enright. It was held in that case, that, to entitle the alien to hold real estate, the descent of which was cast prior to the Act of 1856, such alien must be a resident of the State at the time of the descent. But the Act of 1856 was not involved in the decision.