State ex rel. Fook Ling v. Preble

By the Court, Hawley, C. J.: This is an application for a writ of mandamus to compel respondent, as surveyor-general and ex-officio land register of the state of Nevada, to receive the application of relator to purchase certain vacant non-mineral lands belonging to the state of Nevada. The only question to be determined is whether a citizen and subject of the Chinese empire, who is a resident of this state, is entitled, under the laws of the United States, or of this state, to locate or purchase any of the public lands belonging to the state of Nevada. The constitution of this state provides that “foreigners who are or may hereafter become, bona fide residents of this state, [253] shall enjoy the same rights in respect to the possession, enjoyment, and inheritance of property as native-born citizens.” (Art. I sec. 16.) The rights of-foreigners are not confined to those who have declared their intention to become citizens of the United States, or to those who under our laws are entitled to become citizens by naturalization. The constitution gives to all foreigners who are bona fide residents of this state certain rights, which may be enlarged but canuot be abridged, by the legislature. The rights thus guaranteed by the constitution cannot be taken away. It is not within the power of the legislature of this state to limit the right to possess, inherit or enjoy such property to aliens who may become citizens. (People v. Rodgers, 13 Cal. 160; McConville v. Howell, 17 Fed. Rep. 104.) It is admitted by the pleadings that relator is a resident of this state, and that he has complied with the laws of this state, and is entitled to the relief he asks, unless the fact that he cannot become a citizen of the United States deprives him of that right. We are of opinion that the constitutional provision above quoted is conclusive in favor of his right to apply for the lands described in his petition. There are no provisions in the constitution of the United States or in the existing treaties between the United States and China which deprive him of that right. No act authorized by the constitution cau be said to be against the public policy of the state. Let the writ issue as prayed for by relator.