1. The treatymaking power extends to all proper subjects of
negotiation between our government and foreign nations, including
that of promoting friendly relations by establishing rules of
equality between foreign subjects while here and native citizens.
P.
265 U. S.
341.
2. A rule of equality thus established stands on the same
footing of supremacy as the federal Constitution and laws, cannot
be rendered nugatory in any part of the United States by municipal
ordinances or state laws, operates without the aid of legislation,
state or national, and is to be applied and given authoritative
effect by the courts.
Id.
3. A treaty is to be liberally construed; when two constructions
are possible, one restrictive of rights that may be claimed under
it and the other favorable to them, the latter is to be preferred.
P.
265 U. S.
342.
4. The Treaty of April 5, 1911, with Japan, provides that 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, . . . to own or lease and occupy shops, . .
. to lease land for . . . 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,"
and "shall
Page 265 U. S. 333
receive . . . the most constant protection . . . for their
property."
Held, that pawnbroking, which is licensed and
recognized as a business by the law of the Washington, is "trade"
within he meaning of the treaty, and that a city ordinance in that
state which undertook to confine the business to citizens of the
United States was void as applied to a Japanese subject lawfully
admitted to this country. P.
265 U. S.
342.
122 Wash. 81, reversed.
Error to a decree of the Supreme Court of Washington which
sustained an ordinance of the City of Seattle restricting the
business of pawnbroking, in a suit brought by Asakura to prevent
its enforcement.
Page 265 U. S. 339
MR. JUSTICE BUTLER delivered the opinion of the Court.
Plaintiff in error is a subject of the Emperor of Japan, and,
since 1904, has resided in Seattle, Washington. Since July, 1915,
he has been engaged in business there as a pawnbroker. The city
passed an ordinance, which took effect July 2, 1921, regulating the
business of pawnbroker and repealing former ordinances on the same
subject. It makes it unlawful for any person to engage in the
business unless he shall have a license, and the ordinance
provides
Page 265 U. S. 340
"that no such license shall be granted unless the applicant be a
citizen of the United States." Violations of the ordinance are
punishable by fine or imprisonment or both. Plaintiff in error
brought this suit in the Superior Court of King County, Washington,
against the city, its Comptroller and its Chief of Police to
restrain them from enforcing the ordinance against him. He attacked
the ordinance on the ground that it violates the treaty between the
United States and the Empire of Japan, proclaimed April 5, 1911, 37
Stat. 1504, violates the Constitution of the State of Washington,
and also the due process and equal protection clauses of the
Fourteenth Amendment of the Constitution of the United States. He
declared his willingness to comply with any valid ordinance
relating to the business of pawnbroker. It was shown that he had
about $5,000 invested in his business, which would be broken up and
destroyed by the enforcement of the ordinance. The Superior Court
granted the relief prayed. On appeal, the supreme court of the
state held the ordinance valid and reversed the decree. The case is
here on writ of error under § 237 of the Judicial Code.
Does the ordinance violate the treaty? Plaintiff in error
invokes and relies upon the following provisions:
"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, 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. . . . The citizens or subjects of
each . . . shall receive, in the territories of the other, the most
constant protection and security for their persons and property. .
. . "
Page 265 U. S. 341
A treaty 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."
Constitution, Art. VI, § 2.
The treaty-making power of the United States is not limited by
any express provision of the Constitution, and, though it does not
extend "so far as to authorize what the Constitution forbids," it
does extend to all proper subjects of negotiation between our
government and other nations.
Geofroy v. Riggs,
133 U. S. 258,
133 U. S.
266-267;
In re Ross, 140 U.
S. 453,
140 U. S. 463;
Missouri v. Holland, 252 U. S. 416. The
treaty was made to strengthen friendly relations between the two
nations. As to the things covered by it, the provision quoted
establishes the rule of equality between Japanese subjects while in
this country and native citizens. Treaties for the protection of
citizens of one country residing in the territory of another are
numerous,
* and make for
good understanding between nations. The treaty is binding within
the State of Washington.
Baldwin v. Franks, 120 U.
S. 678,
120 U. S.
682-683. 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. It operates of itself, without the aid of any
legislation, state or national, and it will be applied and given
authoritative effect by the courts.
Foster v.
Neilson, 2 Pet. 253,
27 U. S. 314;
Head Money Cases, 112 U. S. 580,
112 U. S. 598;
Chew Heong v. United States, 112 U.
S. 536,
112 U. S. 540;
Whitney v. Robertson, 124 U. S. 190,
124 U. S. 194;
Maiorano v. Baltimore & Ohio R.Co., 213 U.
S. 268,
213 U. S.
272.
The purpose of the ordinance complained of is to regulate, not
to prohibit, the business of pawnbroker. But it
Page 265 U. S. 342
makes it impossible for aliens to carry on the business. It need
not be considered whether the state, if it sees fit, may forbid and
destroy the business generally. Such a law would apply equally to
aliens and citizens, and no question of conflict with the treaty
would arise. The grievance here alleged is that plaintiff in error,
in violation of the treaty, is denied equal opportunity.
It remains to be considered whether the business of pawnbroker
is "trade" within the meaning of the treaty. Treaties are to be
construed in a broad and liberal spirit, and when two constructions
are possible, one restrictive of rights that may be claimed under
it and the other favorable to them, the latter is to be preferred.
Hauenstein v. Lynham, 100 U. S. 483,
100 U. S. 487;
Geofroy v. Riggs, supra, 133 U. S. 271;
Tucker v. Alexandroff, 183 U. S. 424,
183 U. S. 437.
The ordinance defines "pawnbroker" to
"mean and include every person whose business or occupation [it]
is to take and receive by way of pledge, pawn or exchange, goods,
wares or merchandise, or any kind of personal property whatever,
for the repayment or security of any money loaned thereon, or to
loan money on deposit of personal property,"
and defines "pawnshop" to "mean and include every place at which
the business of pawnbroker is carried on." The language of the
treaty is comprehensive. The phrase "to carry on trade" is broad.
That it is not to be given a restricted meaning is plain. The
clauses "to own or lease . . . shops, to lease land for . . .
commercial purposes, and generally to do anything incident to or
necessary for trade," and "shall receive . . . the most constant
protection and security for their . . . property . . . " all go to
show the intention of the parties that the citizens or subjects of
either shall have liberty in the territory of the other to engage
in all kinds and classes of business that are or reasonably may be
embraced within the meaning of the word "trade" as used in the
treaty.
Page 265 U. S. 343
By definition contained in the ordinance, pawnbrokers are
regarded as carrying on a "business." A feature of it is the
lending of money upon the pledge or pawn of personal property
which, in case of default, may be sold to pay the debt. While the
amounts of the loans made in that business are relatively small,
and the character of property pledged as security is different, the
transactions are similar to loans made by banks on collateral
security. The business of lending money on portable securities has
been carried on for centuries. In most of the countries of Europe,
the pledge system is carried on by governmental agencies; in some
of them, the business is also carried on by private parties. In
England, as in the United States, the private pledge system
prevails. In this country, the practice of pledging personal
property for loans dates back to early colonial times, and
pawnshops have been regulated by state laws for more than a
century. We have found no state legislation abolishing or
forbidding the business. Most, if not all, of the states provide
for licensing pawnbrokers and authorize regulation by
municipalities. While regulation has been found necessary in the
public interest, the business is not on that account to he excluded
from the trade and commerce referred to in the treaty. Many worthy
occupations and lines of legitimate business are regulated by state
and federal laws for the protection of the public against
fraudulent and dishonest practices. There is nothing in the
character of the business of pawnbroker which requires it to be
excluded from the field covered by the above quoted provision, and
it must be held that such business is "trade" within the meaning of
the treaty. The ordinance violates the treaty. The question in the
present case relates solely to Japanese subjects who have been
admitted to this country. We do not pass upon the right of
admission or the construction of the treaty in this respect, as
that question is not before us, and would require consideration
of
Page 265 U. S. 344
other matters with which it is not now necessary to deal. We
need not consider other grounds upon which the ordinance is
attacked.
Decree reversed.
*
See "Handbook of Commercial Treaties," prepared by
United States Tariff Commission, 1922.