I dissent.
I cannot agree with the conclusion announced with respect to the constitutionality of that portion of the alien land law which provides that no alien ineligible to citizenship may be appointed guardian of "that portion of the estate of a minor which consists of property which such alien . . . is inhibited from acquiring, possessing, enjoying or transferring by reason of the provisions of this act." The plain object of this provision was to deny the right to be such guardians to aliens who were made ineligible to hold agricultural land under the alien land law, so as to prevent an evasion of the terms of that act, of which this provision is a part. The first question presented in considering its constitutionality, it being conceded it does not violate the terms of the treaty with Japan, is whether it denies to such aliens the equal protection of the laws. In Terrace v. Thompson, 274 Fed. 841, 843, it is said: "A state may lawfully prohibit aliens acquiring land within its boundaries, if there is no treaty to the contrary. (Chirac v. Chirac, 2 Wheat. 259, 272 [4 L.Ed. 234, see, also, Rose's U.S. Notes]; Houenstein v. Lynham, 100 U.S. 483, 484 [25 L.Ed. 628]; De Vaughn v. Hutchinson, 165 U.S. 566, 570 [41 L.Ed. 827, 17 Sup. Ct. Rep. 461]; Clarke v. Clarke,178 U.S. 186 [44 L.Ed. 1028, 20 Sup. Ct. Rep. 873]; Blythe v.Hinckley, 180 U.S. 333 [45 L.Ed. 557, 21 Sup. Ct. Rep. 390].)" The several cases cited in the prevailing opinion state the general rules relating to classification for purposes of legislation. In this instance the aliens coming within the inhibition of the legislation seek by indirection to control agricultural land which the alien land law, the validity of which is not questioned by the majority opinion, denies them the right to own. To hold that under the federal guarantee of equal protection of the laws, the state is powerless to prevent the circumvention *Page 660 of a law it had the authority to enact, is in effect to declare that it cannot, by an exercise of its sovereign will, effectuate the purpose of the original legislation — to prevent its agricultural land from passing under the control of such aliens. I am not prepared to assent to such a conclusion. It seems clear to me that the state, having the power to enact the original law directed at these aliens, may classify them in supplemental legislation, the object of which is to make the parent legislation effective.
The statute held constitutional in Patsone v. Pennsylvania,232 U.S. 138 [58 L.Ed. 539, 34 Sup. Ct. Rep. 281, see, also, Rose's U.S. Notes], made it unlawful for any unnaturalized foreign-born resident to kill any wild bird or animal except in defense of person or property, and "to that end" made it unlawful for any such person to own or be possessed of a shotgun or rifle, with a penalty of twenty-five dollars and a forfeiture of the gun. In that case the supreme court of the United States, speaking through Mr. Justice Holmes, said: "But we start with the general consideration that a state may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one dependent upon experience. . . . The question therefore narrows itself to whether this court can say that the legislature of Pennsylvania was not warranted in assuming as its premise for the law that resident unnaturalized aliens were the peculiar source of the evil that it desired to prevent." It appears from that case that unnaturalized foreign-born residents were the chief slaughterers of wild birds and animals, and to prevent violations of a statute which made the killing of the game unlawful, such persons were denied the right to own property consisting of certain kinds of firearms which they might use to kill game. Here, the object is not to prevent a violation of a statute, but to prevent an evasion of it, for, while it is true the alien parent does not acquire title to the land, as a practical matter he does secure control of it in his capacity as guardian. The only persons who would evade such a statute are those against whom it is directed, namely, aliens ineligible to citizenship — *Page 661 a definite class of the population, as between the members of which the act makes no discrimination. To prevent the circumvention of the law, such aliens are denied the right to be guardians of these estates, by use of which form of guardianship they would control them. I perceive no distinction in principle between the two cases.
Viewed purely as a question of guardianship, it may be true, as stated in the prevailing opinion, that "The right or privilege of a father to be the guardian of his own minor child does not in any respect depend upon or arise out of his nationality or his eligibility to citizenship in this country. It has no relation thereto." But when it is considered that out of all the persons who may become guardians of this class of property these aliens alone seek to be appointed as such with the definite object of evading the alien land law, there is a relation established between them and the right to be guardians which places them in a distinct class with reference to that subject.
The means adopted to accomplish the objects and purposes of the alien land law are not unreasonable. As pointed out in the main opinion, matters of guardianship are within the control of the legislature. The qualification and competency of guardians are, therefore, subject to statutory change. This provision is the latest expression of the legislative will on the subject of eligibility to guardianship. It is an additional qualification of the rule that a parent, or person nominated by a minor over fourteen years of age, may be appointed as guardian. (Sec. 1751, Code Civ. Proc.) A parent who is incompetent has no right to be appointed guardian of his child. In the case at bar, it was found by the trial court and the petitioner himself admitted that the land was transferred to the minor and that petitioner is seeking to be appointed guardian solely because under the alien land law he could not own the land himself. It is urged that one who avowedly seeks to circumvent a law of the state and defeat its plain purpose is an unfit person to be a guardian. However that may be, this statute expressly renders ineligible to be guardians of a certain class of property in the estates of minors those in the class of whom petitioner is one. It does not interfere with the right of a natural parent to be the guardian of the person of the minor or of that portion of its estate which the guardian *Page 662 himself might lawfully acquire and enjoy. Such a regulation is clearly within the legislative power of the state.
Considered from this viewpoint, the rights of the minor are not infringed by this provision. It cannot be questioned that this minor has, under section 21, article I, of the constitution of this state, the same rights as any other native-born citizen. Neither can it be questioned that the title to the land has vested in her. But no child has a right to have its parent appointed its guardian if the parent is incompetent to discharge the duties of guardianship. By the provision in question an additional class of persons are rendered incompetent to be guardians of property of a particular character. A minor has no more right to have a parent declared by law to be ineligible appointed as guardian than such parent would have to be the guardian. The rights of each are subject to statutory regulation and in such a case as this neither can have more ground for complaint than if the parent were disqualified because of incompetency to discharge the duties of the office. This legislation applies to all minors whatever the nationality of their parents may be, and it applies whether the person sought to be appointed guardian is the parent of the minor or is a stranger.
It follows that since it was adopted to prevent the evasion of the alien land law by the class of persons directly affected thereby, it was proper to classify them for the purposes of this provision, and since the means used are not unreasonable, the enactment should be upheld as aiding the enforcement of the alien land law in spirit as well as in letter.
Rehearing denied.
All the Justices concurred, except Lawlor, J., who dissented.
*Page 663Waste, J., was absent and Richards, J., pro tem., was acting.