The policy of every nation, and more particularly of a commercial nation, is to remove those disabilities to which aliens were subjected by the common law. The framers of our State Constitution sought, by the incorporation of Section 17 in the " Declaration of Rights," the most effectual mode of carrying out this policy, by protecting the rights of the resident alien, and restraining any legislative action in derogation of those rights.
This clause removed the disabilities which attached to the alien by the common law. It placed the resident foreigner on an equality with the citizens as respects the rights of possession, enjoyment, and inheritance of property; it capacitated him to inheritas a citizen. The only prohibition is to prevent the Legislature passing any law which would restrict the rights of aliens. Legislative power is only limited by express prohibitions. (4 Cal. 46; 5 Id. 23; 6 Id. 88.)
Section 17 was simply a declaration of the rights guaranteed to " foreigners who are, or may hereafter become, bona fide residents of this State." The express mention of resident foreigner cannot be construed into an implied prohibition on the Legislature to pass laws preserving the rights of non-residents. All laws in relation to aliens, and the title by escheat, are peculiarly political in their character, and will be liberally construed. (People v. Folsom , 5 Cal. 373.)
The Act of April 19th, 1856, gives to the non-resident here a reasonable time to become a bona fide resident, and makes his right to depend upon his coming in the State, and there settling within five years. The law casts the descent upon the alien, being a non-resident, but upon condition. The constitutional provision gives to the resident alien all the rights of inheritance, one of which is the right of transmission; but it fails to give his heirs any reasonable time in which tocome and claim the estate. This grant of reasonable time to become bona fide residents, is all the Act intends.
The heirs of David Morgan and Isaac Levick became seized of their real estate, and entitled to hold it, upon the condition that they would " come and settle" in this State within five years, and a failure to comply with the condition would terminate their estate, and it would then vest in the State as an escheat. Upon the death of David Morgan and Isaac Levick, the property of which they died seized, either vested in the State of California as an escheat, or it vested in their heirs, for otherwise the freehold would have been in abeyance.
It is argued, that the Administrator of this estate has no right to appear in opposition to the State. We contend that under the Act of May 4th, 1852, the Administrator is one who claims an interest in the estate, and as such, he, with the terre-tenants and the heirs, put in an answer denying the facts stated in the information. The Administrator is the representative of the creditors, and he has a lien upon the estate for the payment of the debts due from the estate to the creditors and the expenses of administration. (Beckett v. Selover , 7 Cal. 215.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Terry, C. J. concurring.
OPINION
BALDWIN, Judge
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 proceeds, 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 become, 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 , 12 Cal. 450. 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.
It is contended by the Appellant that the clause of the Constitution is restrictive as well as enabling; that its terms exclude any other rights or privileges to aliens than those given. We think this view erroneous. The Constitution is not a grant of power or an enabling Act to the Legislature. It is a limitation on the general powers of a legislative character, and restrains only so far as the restriction appears, either by express terms or by necessary inference. (4 Cal. 46; 6 Ind. 88.)
The object of this provision was to secure a certain protection to such resident aliens as might be in the State at the time of a descent. But this short sentence was not designed to comprehend all the law in respect to aliens. The Legislature could not, indeed, abridge this privilege, but it was not disabled from extending it or adding other privileges. It might as well be urged that because the Constitution provided that no law should be passed impairing the obligation of contracts, no legislative regulation could be had; or, because a homestead was exempted from forced sale, there could be no exemption of other property. The alien is secured by the Constitution in this one privilege, but he may be secured by the Legislature in as many more as it chooses to give, provided there is no conflict with any constitutional restrictions upon its power; of which this provision is not one.
The Administrator, having possession of the real estate, could well set up this defense. The statute denies any present right to the State to take the property; and it is a good answer to one in possession to show a want of power in him who seeks to disturb it.
Judgment affirmed.