MEMORANDUM
ROBINSON, District Judge.This matter comes before the Court on defendant’s motion to dismiss, on plaintiff’s motion to convene a Three-Judge District Court to enjoin the enforcement and execution of the provisions of Sections 76-401 and 76-402 Revised Statutes of Nebraska 1943 and for a determination on the merits of the relief prayed for. By the Order of this Court dated May 8, 1970, it was decreed that a trial and argument be set for June 1, 1970, before a Three-Judge District Court. In the interest of judicial expediency the defendants’ motion to dismiss and the merits of the case were argued and taken under advisement. Accordingly, before this panel can reach the constitutional issues it first must be determined if the motion to dismiss is to be sustained or overruled.
Hussan Shames died intestate on July 4, 1962 in Sioux City, Woodbury County, Iowa. The decedent was a resident of that county and state. He left as his only heirs the four plaintiffs in this action who are nationals and residents of Syria. The main probate of the decedent was commenced in Woodbury County District Court, Sioux City, Iowa, and an auxiliary probate was opened in Cedar County Court, Hartington, Nebraska, on July 6, 1963. This auxiliary proceeding was commenced to probate certain real estate the decedent owned in Nebraska. The State of Nebraska intervened in the probate proceedings and asked that the Nebraska estate of Hussan Shames escheat to the State of Nebraska for failure of qualified heirs to take. The Probate Court entered a de"gree January 23, 1969, in which it said the real estate escheated to the State of Nebraska. An appeal has been taken by plaintiffs from this decree to the District Court of Cedar County, Nebraska. This Panel was advised at the oral arguments that the District Court has refrained from ruling on the appeal and will so refrain until this Court renders its decision in the matter.
Defendants have urged that the Court should abstain from entertaining the substantive issues and allow the Nebraska state courts to dispose of the constitutional challenges herein raised. In recent years there has been frequent recognition of situations in which a federal court may decline to proceed though it has jurisdiction under the Constitution and the Statutes.1 Abstention by federal courts stems from Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). There the court affirmed a federal district court’s refusal to issue an injunction against the Texas Railroad Commission until the State Courts had an opportunity to void the commission action on State law grounds. Justice Frankfurter speaking for the court said:
“The last word on the meaning of Article 6445 of the Texas Civil Statutes [the challenged state statute] and therefore the last word on the statutory authority of the Railroad Commission in this case, belongs neither to us nor to the district court but to the supreme court of Texas. In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication: Glenn v. Field Packing Co., 290 U.S. 177 [54 S.Ct. 138, 78 L.Ed. 252]; Lee v. Bickell, 292 U.S. 415 [54 S.Ct. 727, 78 L.Ed. 1337]. The reign of law is hardly promoted if an unneces*1323sary ruling of a federal court is thus supplanted by a controlling decision of a state court.” 312 U.S. at 499-500, 61 S.Ct. at 645.
The abstention doctrine reached its broadest definition in four decisions handed down June 8, 1959.2 These decisions reaffirmed the basic doctrine underlying abstention, that is that federal courts should stay the federal proceeding in “special circumstances” principally, when a challenged statute is open to an interpretation and construction that could possibly avoid the constitutional issue. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 [1959].
However, in Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 [1967], abstention was substantially limited. In Zwickler the appellant was challenging the constitutionality of a New York statute which prohibited, among other things, the distribution of handbills concerning any candidate for an elected or public office unless there was printed thereon the name and post office addresses of the printer of said handbill and the name of the person who ordered the said handbill to be distributed. A three-judge court applied the absention doctrine and dismissed the complaint. Zwickler v. Koota, 261 F.Supp. 985 [E.D.N.Y.1966]. The Supreme Court reversed, holding that there were no “special circumstances” which required the application of the absention doctrine. Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444.3 The court felt that there was no possible construction of the statute which could avoid the constitutional issues raised.
In a recent case, Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 [1970], the Supreme Court reversed a decision of the three-judge panel where the lower court had refused to apply abstention and held an Act of Alaska and the regulations passed pursuant to that statute unconstitutional under the Equal Protection clause of the Fourteenth Amendment and under the Constitution of Alaska. The High Court felt that the state court decision in interpreting the Alaska Constitution could “conceivably avoid any decision under the Fourteenth Amendment and would avoid any possible irritant in the federal-state relationship.” The court cited approvingly language from City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959) where it was said:
“Proper exercise of federal jurisdiction requires that controversies involving unsettled questions of state law be decided in the state tribunals preliminary to a federal court’s consideration of the underlying federal constitutional questions. * * *” 358 U.S. at 640, 79 S.Ct. at 456.
In the present case however, there are no unsettled questions of state law. In Semrad v. Semrad, 170 Neb. 911, 104 N.W.2d 338 [1960] the Supreme Court of Nebraska fully interpreted the state statutes herein challenged.4 Thus our sit*1324uation here is analogous to Zwickler v. Koota, supra, where it was determined that abstention did not apply for the challenged state statutes or constitution were not open to interpretation that could avoid the constitutional issue. Accordingly this Court does not deem abstention applicable to the case at hand, and defendant’s motion to dismiss on the grounds of abstention should be overruled.
Proceeding now to the issue of the constitutionality of the challenged statutes: The four plaintiffs in this action ask the Court to enjoin the enforcement and execution of Section 76-401 and 76-402 R.R.S.1943,5 by Judge Joseph Marsh of the District Court of Nebraska, in and for Cedar County; the State of Nebraska, through its Attorney Genera), Clarence A. H. Meyer; Governor Norbert Tiemann; Paul Robinson, County Attorney of Cedar County, Nebraska; and Max Goetz, Administrator of the Estate of Hussen James in Cedar County, Nebraska, because such enforcement and execution would allegedly constitute an unconstitutional intrusion into the field of foreign affairs which the Constitution of the United States entrusts to the President of the United States and Congress. Plaintiffs further allege that when construed together the two statutes deprive them of property without due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution. They also contend that when the two statutes are read in conjunction with Section 76-414 R.R.S.1943,6 which excepts property within three miles of the corporate limits of any city or town from the operation of Sections 76-401 and 402, they are deprived of equal protection of the law as guaranteed by the equal protection clause of the Fourteenth Amendment to the United States Constitution. Finally plaintiffs argue that the statutes in question deprive the decedent of the right to dispose of his property as he wishes, and therefore deprive him of his liberty without due process of law, as guaranteed to him by the Fourteenth Amendment to the United States Constitution.7
*1325Do the Nebraska Statutes Constitute an Unconstitutional Intrustion into Unit-States Foreign Affairs?
Section 76-402 R.R.S.1943 on its face is an absolute bar to the inheritance of any real property located in the State of ^Nebraska by a non-resident alien. There are, however, two exceptions to the operation of the statute, one being a legislative enactment, to-wit: the aforementioned Section 76-414 R.R.S.1943, which exempts land located within three miles of the corporate limits' of any city or town; the other exception, being of judicial origin, is that whenever the United States has a treaty with a foreign nation declaring that residents of that nation shall have the right to inherit from citizens of the United States, the Nebraska Supreme Court will enforce such rights without regard to any statutory provisions of the State. See Erickson v. Carlson, 95 Neb. 182, 145 N.W. 352 [1914].
Although Section 76-402 R.R.S.1943, aside from the two aforesaid exceptions, bars non-resident aliens from inheriting realty located in Nebraska, it does not of itself result in an automatic escheat to the state of any Nebraska land willed or *1326otherwise left to a non-resident alien. In Metzger v. Metzger, 108 Neb. 613, 188 N.W. 229 (1922), the Nebraska Supreme Court held that land devised to non-resident aliens incapable of acquiring an interest therein must be regarded as intestate property descendable as provided by law, to the next of kin who are capable of taking. However, when there are . no next of kin residing in the United States capable of taking, the Nebraska realty which a decedent has attempted to leave a non-resident alien, it does escheat to the state by virtue of 76-401 R.R.S.1943, the other statute which plaintiffs challenge as being unconstitutional.
In challenging the two aforementioned statutes as an unconstitutional intrusion into the field of foreign affairs, plaintiffs rely heavily on the United States Supreme Court’s decision in Zsehernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 [1968].
In Zsehernig the appellants, residents of East Germany, were the sole heirs of an Oregon resident who died intestate, leaving personal property. The appellees were members of the State Land Board who petitioned the Oregon Probate Court for the escheat of the personalty under an Oregon Statute8 which provided for escheat in cases where a non-resident alien claims real or personal property unless: [1] there was a reciprocal right of a United States citizen to take property on the same terms as the citizen of the foreign nation, [2] American citizens had the right to receive payment here of funds from estates in the foreign country, and [3] foreign heirs had the right to receive the proceeds of Oregon estates without confiscation. The Oregon Supreme Court held that appellants could not take the personalty, because the reciprocity required under the statute was not present. The United States Supreme Court, in an opinion written by Justice Douglas, reversed holding that the statute as applied involved the State in foreign affairs and international relations, matters which the Constitution entrusts solely to the Federal Government. This Court interprets Zsehernig as concerned primarily with the application of the reciprocity clause of that statute by the Oregon Probate Courts.
Unlike the Oregon statute, the Nebraska statute herein challenged does not contain such a reciprocity provision or any provision which concerns itself with the application of the statute. If it did contain such a provision it would not be unconstitutional on its face but would become so only if it was applied in such a manner as to intrude upon the foreign affairs of the United States.
That the application of the Oregon statute was the concern of the court in Zsehernig is evidenced by the Court’s *1327refusal to overrule its prior decision in Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 [1947].
In Clark v. Allen, the Court held that a general reciprocity clause 9 did not on its face intrude upon the federal domain in the handling of foreign affairs. 331 U.S. at 516-517, 67 S.Ct. 1431. The court noted that the California statute would have only “some incidental or indirect effect in foreign countries.” Id., at 517, 67 S.Ct., at 1439.
In Zschernig the Court said of Clark v. Allen:
“Had that case appeared in the posture of the present one, a different result would have obtained. We were there concerned with the words of a statute on its face, not the manner of its application. State courts, of course, must frequently read, construe, and apply laws of foreign nations. It has never been seriously suggested that state courts are precluded from performing that function, albeit there is a remote possibility that any holding may disturb a foreign nation * * *.” 389 U.S. at 433, 88 S.Ct. at 667.
The court went on to say:
“ * * * It now appears that in this reciprocity area under inheritance statutes, the probate courts of various States have launched inquiries into the type of governments that obtain in particular foreign nations — whether aliens under their law have enforceable rights, whether the so-called ‘rights’ are merely dispensations turning upon the whim or caprice of government officials, whether the representation of consuls, ambassadors, and other representatives of foreign nations is credible or made in good faith, whether there is in the actual administration in the particular foreign system of law any element of confiscation.” 389 U.S. at 433-434, 88 S.Ct. 667.
The Court said the Oregon statute had, “ * * * more than ‘some incidental or indirect effect in foreign countries,’ and its great potential for disruption or embarrassment makes us hesitate to place it in the category of a diplomatic bagatelle.” 389 U.S. at 434-435, 88 S.Ct. at 667. The statute had introduced the concept of “confiscation”, which had “ * * * led into minute inquiries concerning the actual administration of foreign law, * * * ” 389 U.S. at 435, 88 S.Ct. at 668.
That Oregon probate courts had severely criticized certain foreign nations 10 and had thereby caused an ad*1328verse affect upon the foreign dealings and affairs of the United States, was the evil which the Zschernig decision was intended to alleviate. As Justice Douglas *1329stated: “ * * * The statute as construed seems to make unavoidable judicial criticism of nations established on a more authoritation basis than our own.” 389 U.S. at 440, 88 S.Ct. at 670.
Justice Stewart and Justice Brennan in a concurring opinion stated that although they joined with the majority they would go even further and hold the Oregon statute unconstitutional on its face.
Justice Stewart said that in his view,
“ * * * each of the three provisions of the Oregon law suffers from the same fatal infirmity. All three launch the State upon a prohibited voyage into a domain of exclusively federal competence. Any realistic attempts to apply any of the three criteria would necessarily involve the Oregon courts in an evaluation, either expressed or implied, of the administration of foreign law, the credibility of foreign diplomatic statements, and the policies of foreign governments.” 389 U.S. at 442. [Emphasis own].
Justice Harlan also concurred m a separate opinion in which he felt the Oregon statute was constitutional but could not be applied against Germany because of a 1923 Treaty11 between that country and the United States. Justice Harlan’s interpretation of the majority opinion in Zschernig was as follows:
“Essentially, the Court’s basis for decision appears to be that alien laws afford state court judges an opportunity to criticize in dictum the policies of foreign governments, and that these dicta may adversely affect our foreign relations.” 389 U.S. at 461, 88 S.Ct. at 681.
The Zschernig decision was also thoroughly, and we believe correctly analyzed by a three judge panel of the United States District Court for the Southern District of New York in Goldstein v. Cox, 299 F.Supp. 1389 [S.D.N.Y.1968], The Court held that the fact that two New York surrogates directed that the distributive shares in a New York estate to certain non-resident aliens to be deposited in court pursuant to a New York statute12 authorizing the withhold*1330ing of payment of any money or property to alien distributees,' whenever it appears they would not have the benefit or use thereof, did not justify a finding that the statute was unconstitutional, because there was no showing that it had been applied in such a way as to interfere with foreign relations.
The Goldstein Court’s interpretation of Zschernig, is the same as ours. That Court in upholding the New York statute stated as follows:
“In the case before us there is no showing that the New York courts have engaged in the conduct criticized in Zschernig. There is no showing and not even any claim that the New York courts have uttered any animadversions * * 299 F.Supp. 1393.
It is clear, then, that the Goldstein Court, like Justice Stewart, Justice Brennan and Justice Harlan, interpreted the majority opinion in Zschernig as a holding aimed at ending judicial criticism of foreign governments.
Zschernig’s application to the New York statute has been considered by a New York state court In Matter of Leikind, 22 N.Y.2d 346, 292 N.Y.S.2d 681, 239 N.E.2d 550 [1968].13 There the New York Court of Appeals interpreted Zschernig as a decision dealing with the unconstitutional application of the escheat statute by the Oregon courts. The Court of Appeals upheld the New York escheat statute on the grounds that the New York lower courts had not engaged in the type of conduct criticized in Zschernig.
In the recent decision of Bjarsch v. DiFalco, 314 F.Supp. 127 [S.D.N.Y.1970], a three judge district court, in an opinion by Judge Palmieri, held that an amendment to the New York Surrogate’s Court Procedure Act14 was *1331not unconstitutional under the Zschemig rationale.
The section under consideration in DiFalco was a “benefit, use and control provision relating to the right of alien legatees and beneficiaries to receive funds from the estates of New York decedents.” The section allows the Surrogate to order that money or property due an alien beneficiary to be paid into court, whenever it appears that the proposed recipient would not have the benefit, use or control of the money or property.
In upholding the statute, the Court commented on the Clark and Zschemig decisions, saying:
“The Clark and Zschemig decisions together can be construed to mean that statutes restricting the rights of alien beneficiaries to receive inheritances of United States citizens do not inherently constitute an intrusion into the foreign affairs area. At the same time, in applying such statutes, whether the law be a reciprocity provision or a benefit, use and control provision, they appear to warn the state courts not to inquire into or evaluate the administration of foreign law, or the credibility and policies of foreign governments. Thus a court is limited to a ‘routine reading’ of a foreign country’s laws or a ‘just matching’ of such laws with the laws of the state involved. * * * ” 314 F.Supp. at 133.
That Court then was in accord with all the reported authority, in its interpretation of Zschemig.
The case of Mora v. Battin, 303 F.Supp. 660 (N.D.Ohio 1969), analyzed Zschemig in considering the constitutionality of the Ohio “Iron Curtain” statute. The court said:
“ * * * where a statute permits inquiry into the type of government existing in a foreign nation, or into the operation of that government, or into the question of whether the legal ‘rights’ guaranteed by that nation are rights in fact, or into the question of whether statements by the representatives of the foreign nation are credible or made in good faith, or into the likelihood that the legatees will actually receive the property left to them, such a statute, so applied, intrudes into the exclusive right of Congress to regulate foreign policy.” 15 303 F.Supp.at 664.
*1332It is thus apparent that every court which has considered Zschernig, has interpreted it to mean that judicial criticism of foreign governments is constitutionally impermissible, and the decision extends no further than that, at the present time.
A careful reading of the entire Zschernig opinion and eases decided pursuant to that decision as cited herein, convinces this panel that the sole basis for striking down the Oregon escheat statute was the manner in which the said statute was being applied. Also, it is apparent that every court which has considered Zschernig has interpreted it to mean no more than judicial criticism of foreign governments is constitutionally impermissible. It is obvious to this Court that the Nebraska statutes challenged herein, are not being applied by the Nebraska Courts in such a way as to come within the prohibitions of the Zschernig case.
The Nebraska statutes in question leave no room for judicial comment of any kind about foreign governments. They simply provide that no non-resident alien can inherit Nebraska land which is outside of a three mile limit from the corporate limits of any city or town. Such an absolute limitation does not allow for discrimination among foreign nations on any basis. Justice Harlan in his concurring opinion in Zschernig noted that a statute such as Nebraska has, is distinguishable from a statute such as the Oregon statute involved therein. The Justice said: “[T]he appellants concede that Oregon might deny inheritance rights to all nonresident aliens.” This is exactly what the Nebraska statute does — it denies the right to inherit certain Nebraska lands uniformly to all non-resident aliens.
Contrary to plaintiff’s contention that the Nebraska statute is an interference with the foreign relations of the United States as pointed out on page 6 the state courts have instead always deferred to United States foreign relations and have followed foreign policy whenever the federal government has expressed it in a treaty.
Our analysis of the Zschernig decision, our reading and examination of the Nebraska statutes challenged herein and the history of those statutes as reported in the decision of Nebraska courts compels us to conclude that the Nebraska statutes are not unconstitutional on any basis set forth in Zschernig. ,While it is true that the Nebraska statutes may have an incidental or indirect effect" off the relations of the United States and foreign nations, the same was true of the California statute considered by the United States Supreme Court in the Clark v. Allen case, which the Court upheld, and continued to approve in Zschernig.
In finding that the Zschernig rationale does not extend so far as to invalidate statutes such as those here under consideration, we adopt the concluding language of Goldstein v. Cox, 299 F.Supp. at 1394, where it was said:
“We appreciate that the Supreme Court may eventually go further than it has thus far gone * * * But we conceive it to be our duty to enforce the law as it is, and not as it may be in the future.”
Do the Nebraska Statutes Deprive | Nonresident Aliens or the Decedent ¡Herein of Property in Violation of the Due Process and Equal Protection Claus*1333es of the Fourteenth Amendment to the United States Constitution?
Plaintiffs contend that the Nebraska statutes herein challenged, deprive them and other nonresident aliens of their property without due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution. They also assert that when the challenged statutes are read in conjunction with Section 76-414, R.R.S.1943,16 they are denied equal protection of the law as guaranteed by the equal protection clause of the Fourteenth Amendment of the United States Constitution.
Plaintiffs’ contentions in this regard are without merit.
The Fourteenth Amendment to the United States Constitution provides: “No state shall * * * deny to any person within its jurisdiction the equal protection of its laws.” Thus before a state must accord Fourteenth Amendment Equal Protection Rights to any person, that person must be physically present within its borders. Therefore, while aliens residing within a state are clearly entitled to the equal protection of its laws, the same is not true of nonresident aliens, and a state is not constitutionally required to accord the equal protection of its laws to this latter group of aliens.17 Accordingly, this Court concludes that the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution has no application to the nonresident alien plaintiffs appearing in this case.
The due process clause of the Fourteenth Amendment presents a somewhat different situation in that it reads: “[N]o State shall * * * deprive any person of life, liberty, or property, without due process of law * * This clause would indicate that even nonresident aliens are perhaps entitled to due process, because it applies to all persons, with no requirement that they be within the jurisdiction of the State.
The Supreme Court has never indicated in unequivocal terms whether a State is required to give due process to nonresident aliens.18 However, as this Court is of the opinion that Section 76-402 R.R.S.1943 [Reissue of 1966] does not deprive nonresident aliens of property without due process of law, as required by the Fourteenth Amendment to the United States Constitution we need not decide whether or not a State must accord nonresident aliens due process.
In the case of Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255 [1923], the Supreme Court of the United States upheld a Washington statute, which was a much more restrictive land statute than the one involved in the present case. The statute had been challenged as a violation of the due process and equal protection clauses of the Fourteenth Amendment as applied to aliens who, under the naturalization laws of *1334Congress, are ineligible to citizenship. The Act provided in substance that any alien could not own, take, have or hold the legal or equitable title, or right to any benefit of any land as defined in the Act, and that land conveyed to or for the use of aliens in violation of the state constitution or of the act shall thereby be forfeited to the State. And it was made a gross misdemeanor, punishable by fine or imprisonment or both, knowingly to transfer land or the right to the control, possession or use of land to such an alien.
The Court held that the challenged statute was a valid exercise of the state’s police power and that such “ * * * legislation applying alike and equally to all aliens, withholding from them the right to own land, cannot be said to be capricious or to amount to an arbitrary deprivation of liberty or property, or to transgress the due process clause.” 263 U.S. at 218, 44 S.Ct. at 19. The Court also held, “[T]he state act is not repugnant to the equal protection clause and does not contravene the Fourteenth Amendment.”
Within a week of the Terrace decision, the Supreme Court, on the basis of Terrace, upheld California’s Alien Land Laws against due process and equal protection challenge under the Fourteenth Amendment. See Porterfield v. Webb, 263 U.S. 225, 44 S.Ct. 21, 68 L.Ed. 278 [1923]; Webb v. O’Brien, 263 U.S. 313, 44 S.Ct. 112, 68 L.Ed. 318 [1923] and Frick v. Webb, 263 U.S. 326, 44 S.Ct. 115, 68 L.Ed. 323 [1923].
In the case of Sei Fujii v. State, 38 Cal.2d 718, 242 P.2d 617 [1952], the Supreme Court of California invalidated the statute upheld in the Porterfield, O’Brien, and Frick cases, supra, reasoning that those cases were no longer the law, because of the United States Supreme Court decision in the case of Oyama v. State of California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 [1948].
In Sei Fujii the court in reference to the due process arguments presented in Terrace stated:
“Moreover, if as indicated in the Terrace case, 263 U.S. at pages 217-221, 44 S.Ct. at pages 18-20, 68 L.Ed. 255, a state may properly bar all non-citizens from owning land, the method of classification here involved was not designed to bring about that result.” 242 P.2d at page 628.
The Sei Fujii Court, in reaching the decision that Porterfield was no longer valid, stated:
“Moreover, under the Porterfield rule, ineligible aliens who are not protected by treaty may be restricted in following many ordinary occupations other than farming, since it is reasonably necessary to the operation of most private businesses to own or lease land upon which an office, shop or factory may be located. Legislation which results in such discrimination imposes upon the ineligible alien an economic status inferior to that of all other persons living in the state and interferes with his right to earn a living. See Kenji Namba v. McCourt, 185 Or. 579, 204 P.2d 569, 583; concurring opinion, Palmero v. Stockton Theatres, Inc., 32 Cal.2d 53, 66-67, 195 P.2d 1.” 242 P.2d at page 629.
That Court concluded at page 630 that:
“ * * * the constitutional theories upon which the Porterfield case was based are today without support and must be abandoned. The California alien land law is obviously designed and administered as an instrument for effectuating racial discrimination, and the most searching examination discloses no circumstances justifying classification on that basis. There is nothing to indicate that those alien residents who are racially ineligible for citizenship possess characteristics which are dangerous to the legitimate interests of the state, or that they, as a class, might use the land for purposes injurious to public morals, safety or welfare. Accordingly, we hold that the alien land law is invalid as in violation of the Fourteenth Amendment.”
*1335Thus Sei Fujii did not consider the validity of the due process arguments presented in Terrace.
As a basis for considering Terrace of questioned validity, Sei Fujii made reference to the concurring opinions in Oyama. However, the attack made in the concurring opinions in Oyama. upon Terrace was again only in regard to the validity of the Equal Protection arguments set forth in Terrace.
In Oyama the United States Supreme Court held that a presumption declared by section nine of the California Alien Land Law19 violated the right of citizens who were children of ineligible aliens and discriminated against such citizens solely because of their parents’ ancestry. The court rejected an argument that the presumption was necessary to prevent evasion of the prohibition against ownership of land by ineligible aliens.
The majority opinion in Oyama did not consider the due process arguments therein raised. The court stated:
“Since the view we take of petitioner’s first contention requires reversal of the decision below, we do not reach their other contentions: that the Alien Land Law denies ineligible aliens the equal protection of the laws, and that failure to apply any limitation period to escheat actions under that law takes property without due process of law.”
Four Justices concurred in the result on the broad ground that the basic provision of the alien land law violated the Fourteenth Amendment, stating that previous decision upholding the statute should be overruled. However, the concurring opinions in Oyama questioned the validity of Terrace, only in regard to The Fourteenth Amendment Equal Protection Right therein expressed.20
This Court is therefore of the opinion that a state’s absolute bar of ownership of land by nonresident aliens has been held by the Supreme Court to be within the valid exercise of that state’s police power, and not violative of due process of law under the Fourteenth Amendment.21
Plaintiffs also argue that the statutes in question deprive the decedent of his right to dispose of his property as he sees fit. They contend that this is a denial of liberty without due process of law and is therefore violative of the due process clause of the Fourteenth Amendment of the United States Constitution. Plaintiff lacks standing to assert the decedent’s rights. It is true that plaintiffs are suffering an injury,- insofar *1336as the statute prevents them from inheriting Nebraska realty. However, even where one has a right of the sort requisite to give him standing to sue, the settled rule is that he may not assert the rights of some other person. Such was the case in Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 [1943], holding that a physician seeking a declaratory judgment that a statute preventing him from giving advice as to contraceptives was unconstitutional, could not rely on his patients’ rights to life, which the statute supposedly threatened. It is true that the Tileston rule is a rule of practice only and should be disregarded when the reasons which underlie it are outweighed by sufficient countervailing considerations. See Barrows v. Jackson, 346 U.S. 841, 74 S.Ct. 19, 98 L.Ed. 361 (1953). There are, however, no peculiar circumstances in this case which compel us to disregard the Tileston Rule, and we find that rule directly applicable to our situation. The plaintiffs simply lack standing to raise the decedent’s rights.
Accordingly,
It is our conclusion, after a thorough and exhaustive research of the applicable law, that the statutes which the plaintiffs herein challenge cannot be held unconstitutional on any of the grounds put forth in plaintiffs’ argument.
Pursuant to this opinion an Order will be entered by this Court pursuant to 28 U.S.C. § 125322 sustaining defendant’s Motion to Dismiss and denying plaintiffs the injunctive relief they ask for.
. For a thorough and recent discussion of the development of the “abstention doctrine” and cases in which it has been applied and rejected see: Eugene Keilin, “Abstention from Jurisdiction: Accommodation or Abdication” 23 Ark.L.Rev. 412 [1969],
. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 [1959] ; Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 [1959] ; County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 [1959] ; Martin v. Creasy, 360 U.S. 219, 79 S.Ct. 1034, 3 L.Ed.2d 1186 [1959].
. The court said: “The judge-made doctrine of abstention, first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U.S. 496 [61 S.Ct. 643, 85 L.Ed. 971], sanctions such scope only in narrowly limited ‘special circumstances.’ Propper v. Clark, 337 U.S. 472, 492 [69 S.Ct. 1333, 93 L.Ed. 1480].”
. In reference to Section 76-401 R.R.S. 1943, the Court in Semrad said: “This section precludes a nonresident alien from acquiring or taking any title or interest in lands in this state by descent, devise, purchase, or otherwise, except as to such lands as are within the exceptions provided in the act.” In regard to Section 76-401 the court said: The words ‘failure of heirs’ contained in 76-401, R.R.S.1943, mean an absence of heirs competent to take by descent or devise. Construing the applicable statutes pari *1324materia [Section 76-401 and 76-402 R.R.S.1943], an alien heir who cannot take by purchase cannot take by descent or devise.”
. The statutes which plaintiffs challenge read as follows:
“76-401. Mscheats: when, title vests in state. Upon the failure of heirs, the title shall vest at once in the state, without an inquest or other proceedings in the nature of office found.”
“76-402. Aliens and foreign corporations; real estate; ownership prohibited. Aliens and corporations not incorporated under the laws of the State of Nebraska are prohibited from acquiring title to or taking or holding any land, or real estate, or any leasehold interest extending for a period for more than five years or any other greater interest less than fee in any land, or real estate in this state by descent, devise, purchase or otherwise, except as provided in sections 76-403 to 76-405.”
. Section 76-414 provides :
“Act; not applicable to real estate within cities and villages, or within three miles thereof; not applicable to manufacturing or industrial establishments. The provisions of sections 76-402 to 76-413 shall not apply to any real estate lying within the corporate limits of cities and villages, or within three miles thereof, nor to any manufacturing or industrial establishment referred to in section 76-413.”
. Nebraska has another statute which affects the inheritance rights of non-resident aliens that was passed in 1963. The probate proceedings out of which this case arose were begun in 1962 and hence that statute does not apply to their case. As a matter of information, that statute reads as follows:
“4-107. Nonresident; alien; propererty by succession or testamentary disposition; taking of property in this state; conditions; escheat; disposition of escheated property. [1] The right of an alien not residing within the United States or its territories to take either real or personal property or the proceeds thereof in this state by succession or testamentary disposition, upon the same terms and conditions as inhabitants and citizens of the United States, is dependent in each case:
[a] Upon the existence of a reciprocal right upon the part of citizens of the *1325United States to take real and personal property and the proceeds thereof upon the same terms and conditions as inhabitants and citizens of the country of which such alien is an inhabitant;
[b] Upon the rights of citizens of the United States to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign country; and
[c] Upon proof that such nonresident alien heirs, distributees, devisees, or legatees may receive the benefit, use, or control of property or proceeds from estates of persons dying in this state without confiscation in whole or in part, by the governments of such foreign countries.
[2] The burden is upon such nonresident alien to establish the fact of existence of the reciprocal rights set forth in subsection [1] of this section.
[3] If such reciprocal rights are not found to exist, the property shall be delivered to the State Treasurer to be held for a period of five years from date of death during which time such nonresident alien may show that he has become eligible to receive such property.
If at the end of such period of five years no showing of eligibility is made by such nonresident alien, his rights to such property or proceeds shall be barred.
[4] At any time within the one year following the date the rights of such nonresident alien has been barred, any other person other than an ineligible nonresident alien who, in the case of succession or testamentary disposition, would have been entitled to the property or proceeds by virtue of the laws of Nebraska governing intestate descent and distribution had the nonresident alien predeceased the decedent, may petition the district court of Lancaster County for payment or delivery of such property or proceeds to those entitled thereto.
[5] If no person has petitioned the district court of Lancaster County for payment or delivery of such property or proceeds within six years from the date of death of decedent, such property or proceeds shall be disposed of as es-cheated property.
[6] All property other than money delivered to the State Treasurer under this section may within one year after delivery be sold by him to the highest bidder at public sale in whatever city in the state affords in this judgment the most favorable market for the property involved. The State Treasurer may decline the highest bid and reoffer the property for sale if he considers the price bid insufficient. He need not offer any property for sale if, in his opinion, the probable cost of sale exceeds the value of the property. Any sale held under this section shall be preceded by a single publication of notice thereof at least three weeks in advance of sale in an English language newspaper of general circulation in the county where the property is to be sold and the cost of such publication and other expenses of sale paid out of the proceeds of such sale. The purchaser at any sale conducted by the State Treasurer pursuant to this section shall receive title to the property purchased, free from all claims of the owner or prior holder thereof and all persons claiming through or under them. The State Treasurer shall execute all documents necessary to complete the transfer of title.”
. Oregon Revised Statutes Sec. 111.070 [1957] reads as follows:
“[1] The right of an alien not residing within the United States or its territories to take either real or personal property or the proceeds thereof in this state by succession or testamentary disposition, upon the same terms and conditions as inhabitants and citizens of the United States, is dependent in each case:
“[a] Upon the existence of a reciprocal right upon the part of citizens of the United States to take real and personal property and the proceeds thereof upon the same terms and conditions as inhabitants and citizens of the country of which such alien is an inhabitant or citizen;
“[b] Upon the rights of citizens of the United States to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign country; and
“ [c] Upon proof that such foreign heirs, distributees, devisees or legatees may receive the benefit, use or control of money or property from estates of persons dying in this state without confiscation, in whole or in part, by the governments of such foreign countries.
“[2] The burden is upon such nonresident alien to establish the fact of existence of the reciprocal rights set forth in subsection [1] of this section.
“[3] If such reciprocal rights are not found to exist and if no heir, devisee or legatee other than such alien is found eligible to take such property, the property shall be disposed of as escheated property.”
. Section 259, California Probate Code, in 1942 provided:
“The rights of aliens not residing within the United States or its territories to take either real or personal property or the proceeds thereof in this State by succession or testamentary disposition, upon the same terms and conditions as residents and citizens of the United States is dependent in each case upon the existence of a reciprocal right upon the part of citizens of the United States to take real and personal property and the proceeds thereof upon the same terms and conditions as residents and citizens of the respective countries of which such aliens are inhabitants and citizens and upon the rights of citizens of the United States to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign countries.”
Section 259.2 provided:
“If such reciprocal rights are not found to exist and if no heirs other than such aliens are found eligible to take such property, the property shall be disposed of as escheated property.”
“The condition with respect to receipt of moneys in the United States was repealed in 1945, while the Clark case was pending. Cal.Stats.1945, c. 1160, § 1, effective September 15, 1945. Under the original act, the non-resident aliens had the burden of establishing the fact of existence of the reciprocal rights. § 259.1. By the 1945 amendment the burden of establishing the non-existence of such reciprocal right was placed on him who challenged the right of the non-resident aliens to take. Section 259.2 was repealed.”
. The following is footnote 8 of the majority opinion in Zschernig, and sets out *1328the evil that the decision sought to prohibit :
“Such attitudes are not confined to the Oregon courts. Representative samples from other States would include statements in the New York courts, such as ‘This court would consider sending money out of this country and into Hungary tantamount to putting funds within the grasp of the Communist,’ and ‘If this money were turned over to the Russian authorities, it would be used to kill our boys and innocent people in Southeast Asia. * * * ’ Heyman, The Nonresident Alien’s Right to Succession Under the ‘Iron Curtain Rule,’ 52 Nw.U.L.Rev. 221, 234, [1957]. In Pennsylvania, a judge stated at the trial of a case involving a Soviet claimant that ‘If you want to say that I’m prejudiced, you can, because when it comes to Communism I’m a bigoted anti-Communist.’ And another judge exclaimed, T am not going to send money to Russia where it can go into making bullets which may one day be used against my son.’ A California judge, upon being asked if he would hear argument on the law, replied, ‘No, I won’t send any money to Russia.’ The judge took ‘judicial notice that Russia kicks the United States in the teeth all the time,’ and told counsel for the Soviet claimant that T would think your firm would feel it honor bound to withdraw as representing the Russian government. No American can make it too strong.’ Berman, Soviet Heirs in American Courts, 62 Col.L.Rev. 257, and n. 3 [1962],
“A particularly pointed attack was made by Judge Musmanno of the Pennsylvania Supreme Court, where he stated with respect to the Pennsylvania Act that:
‘It is a commendable and salutary piece of legislation because it provides for the safekeeping of these funds even with accruing interest, in the steelbound vaults of the Commonwealth of Pennsylvania until such time as the Iron Curtain lifts or sufficiently cracks to allow honest money to pass through and be honestly delivered to the persons entitled to them. Otherwise, wages and other monetary rewards faithfully earned under a free enterprise democratic system could be used by Communist forces which are committed to the very destruction of that free enterprising world of democracy.’ Belemecich Estate, 411 Pa. 506, 508, 192 A.2d 740, 741, rev’d, sub nom. Counsul General of Yugoslavia v. Pennsylvania, 375 U.S. 395, [84 S.Ct. 452, 11 L.Ed.2d 411] on authority of Kolovrat v. Oregon, 366 U.S. 187. [81 S.Ct. 922, 6 L.Ed.2d 218.]
“And further:
‘ * * * Yugoslavia, as the court below found is a satellite state where the residents have no individualistic control over their destiny, fate or pocketbooks, and where their politico-economic horizon is raised or lowered according to the will, wish or whim of a self-made dictator.’ 411 Pa., at 509, 192 A.2d, at 742.
‘All the known facts of a Sovietized state lead to the irresistible conclusion that sending American money to a person within the borders of an Iron Curtain country is like sending a basket of food to Little Red Ridinghood in care of her “grandmother”. It could be that greedy, gluttonous grasp of the government collector in Yugoslavia does not clutch as rapaciously as his brother confiscators in Russia, but it is abundantly clear that there is no assurance upon which an American court can depend that a named Yugoslavian individual beneficiary of American dollars will have anything left to shelter, clothe and feed himself once he has paid financial involuntary tribute to the tyranny of a totalitarian regime.’ Id., at 511, 192 A.2d, at 742-743.
“Another example is a concurring opinion by Justice Doyle in In re Hosova’s Estate, 143 Mont. 74, 387 P.2d 305: ‘In this year of 1963, the Central Committee of the Communist Party of the U.S.S.R. issued the following directive to all of its member[s], “We fully stand for the destruction of imperialism and capitalism. We not only believe in the inevitable destruction of cairitalism, but also are doing everything for this to be accomplished by way of the class struggle, and as soon as possible.’
‘Hence, in affirming this decision the writer is knowingly contributing financial aid to a Communist monolithic satellite, fanatically dedicated to the abolishing of the freedom and liberty of the citizens of this nation.
‘By reason of self-hypnosis and failure to understand the aims and objective of the international Communist conspiracy, in the year 1946, Montana did not have statutes to estop us from making cash contributions to our own ultimate destruction as a free nation.’ Id., at 85-86, 387 P.2d, at 311.”
. Article IV of the 1923 Treaty of Friendship, Commerce and Consular Rights with Germany [44 Stat. 2135] provides:
“Where, on the death of any person holding real or other immovable property or interests therein within the territories of one High Contracting Party, such property or interests therein would, by the laws of the country or by a testamentary disposition, descend or pass to a national of the other High Contracting Party, whether resident or non-resident, were he not disqualified by the laws of the country where such property or interests therein is or are situated, such national shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary, and withdraw the proceeds thereof, without restraint or interference, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases upon the nationals of the country from which such proceeds may be drawn.
“Nationals of either High Contracting Party may have full power to dispose of their personal property of every kind within the territories of the other, by testament, donation, or otherwise, and their heirs, legatees and donees, of whatsoever nationality, whether resident or non-resident, shall succeed to such personal property, and may take possession thereof, either by themselves or by others acting for them, and retain or dispose of the same at their pleasure subject to the payment of such duties or charges only as the nationals of the High Contracting Party within those territories such property may be or belong shall be liable to pay in like cases.”
. Section 2218 [Supp.1969], formerly § 269-a of New York Surrogate’s Court Act, reads as follows:
“1. [a] Where it shall appear that an alien legatee, distributee or beneficiary is domiciled or resident within a country to which checks or warrants drawn against funds of the United States may not be transmitted by reason of any executive order, regulation or similar determination of the United States government or any department or agency thereof, the court shall direct *1330that the money or property to which such alien would otherwise be entitled shall be paid into court for the benefit of said alien or the person or persons who thereafter may appear to be entitled thereto. The money or property so paid into court shall be paid out only upon order of the surrogate or pursuant to the order or judgment of a court of competent jurisdiction.
“[b] Any assignment of a fund which is required to be deposited pursuant to the provisions of paragraph one [a] of this section shall not be effective to confer upon the assignee any greater right to the delivery of the fund than the assignor would otherwise enjoy.
“2. Where it shall appear that a beneficiary would not have the benefit or use or control of the money or other property due him or where other special circumstances make it desirable that such payment should be withheld the decree may direct that such money or property be paid into court for the benefit of the beneficiary or the person or persons who may thereafter appear entitled thereto. The money or property so paid into court shall be paid out only upon order of the court or pursuant to the order or judgment of a court of competent jurisdiction.
“3. In any such proceeding where it is uncertain that an alien beneficiary or fiduciary not residing within the United States, the District of Columbia, the Commonwealth of Puerto Eico or a territory or possession of the United States would have the benefit or use or control of the money or property due him the burden of proving that the alien beneficiary will receive the benefit or use or control of the money or property due him shall be upon him or the person claiming from, through or under him.”
. The New York court considered the same statute as did the Federal Court in Goldstein. See, Note 10, supra.
. Section 2218, New York Surrogate’s Court Procedure Act, now reads as follows :
“Sec. 2218. Deposit in court for benefit of legatee, distributee or beneficiary.
1. [a] Where it shall appear that an alien legatee, distributee or beneficiary is domiciled or resident within a country to which checks or warrants drawn against funds of the United States may not be transmitted by- reason of any executive order, regulation or similar determination of the United States government or any departnlent or agency thereof, the^court shall direct that the money or property to which such alien would otherwise be entitled shall be paid into court for the benefit of said alien or the person or persons who thereafter may appear to be entitled thereto. The money or property so paid into court shall be paid only upon order of the surrogate or pursuant to the order or *1331judgment of a court of competent jurisdiction.
“ [b] Any assignment of a fund which is required to be deposited pursuant to the provisions of paragraph one [a] of this section shall not be effective to confer upon the assignee any greater right to the delivery of the fund than the assignor would otherwise enjoy.
“2. Where it shall appear that a beneficiary would not have the benefit or use or control of the money or other property due him or where other special circumstances make it desirable that such payment should be withheld the decree may direct that such money or property be paid into court for the benefit of the beneficiary or the person or persons who may thereafter appear entitled thereto. The money or property so paid into court shall be paid out only upon order of the court of competent jurisdiction.
“3. In any such proceeding where it is uncertain that an alien beneficiary or fiduciary not residing within the United States, the District of Columbia, the Commonwealth of Puerto Rico or a territory or possession of the United States would have the benefit or use or control of the money or property due him shall be upon him or the person claiming from, through or under him.”
. In the Mora case the court had before it the so-called Ohio “Iron Curtain” statute. In light of Zschemig the statute was declared unconstitutional. The provision was similar to the Oregon statute struck down in Zschemig.
Section 2113.81, Ohio Revised Code, provided as follows:
“Where it appears that a legatee or a distributee, or a beneficiary of a trust not residing within the United States or its territories will not have the benefit or use or control of the money or other property due him from an estate, because of circumstances prevailing at the place of residence of such legatee, distributee, or a beneficiary of a trust, the probate court may direct that such money be paid into the county treasury to be held in trust or the probate court *1332may direct that such money or other property be delivered to a trustee which trustee shall have the same powers and duties provided in section 2119.03 of the Revised Code for such legatee, distributee, beneficiary of a trust or such persons who may thereafter be entitled thereto. Such money or other property held in trust by such county treasurer or trustee shall be paid out by order of the probate judge in accordance with section 2113.82 of the Revised Code. The county treasury shall not be liable for interest on such money held in trust.”
. Which statute, as noted before, excepts property within three miles of the corporate limits of any city or town from the operation of the challenged statutes. See Note 6 supra.
. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 [1888]; Wormsen v. Moss, 177 Misc. 19, 29 N.Y.S.2d 798 [1941]; Templar v. Michigan State Board of Examiners, 131 Mich. 254, 90 N.W. 1058 [1902] ; Torao Takahaski v. Fish & Game Commission, 30 Cal.2d 719, 185 P.2d 805, rev’d on other grounds 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 [1947], See also River Yale Tp. v. Town of Orangetown, 403 F.2d 684 [2d Cir. 1968] ; Cermeno-Cerna v. Farrell, 291 F.Supp. 521 [C.D.Cal.1968].
. In regard to the question of whether or not nonresident aliens are entitled to due process, see Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576 [1953] ; Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 [1945] ; Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 [1950] ; Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 [1954] ; Cermeno-Cerna v. Farrell, 291 F.Supp. 521 [C.D.Cal.1968] But cf. Sardino v. Federal Reserve Bank of New York, 361 F.2d 106 [2d Cir. 1966].
. That section provided for a prima facie presumption of intent to evade escheat upon proof that the consideration for a conveyance of realty was paid or agreed to be paid by an ineligible alien and that title was taken in the name of a citizen or eligible alien.
. In Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948) the concurring opinion of Justice Black is found at page 647, 68 S.Ct. 269 and the concurring opinion of Justice Murphy is found at page 650, 68 S.Ct. 269. Justice Douglas concurred with Justice Black and Justice Rutledge concurred with Justice Murphy.
. In regard to plaintiff’s argument, that they are denied Fourteenth Amendment rights, by the challenged statute, it should bo noted that the same argument was made in the case of Toop v. Ulysses Land Company, 237 U.S. 580, 35 S.Ct. 739, 59 L.Ed. 1127 [1915]. In that case the United States Supreme' Court in considering the predecessor statute to Sec. 76-402, R.R.S.1943 [Reissue of 1966] [i. e., act of March 16, 1889, Section 4825, Comp.Stat. of 1907] did not consider the due process arguments substantial enough to discuss. In reviewing that statute which also prohibited nonresident aliens “from acquiring title to or taking or holding any lands or real estate in this state by descent, devise, purchase, or otherwise,” etc., the court said:
“ * * * [A] contention that the state statute forbidding ownership of real property by aliens was repugnant to the Fourteenth Amendment. * * * we think * * * is too frivolous to afford a basis for jurisdiction * * * to prosecute this direct writ of error * * He »
. See Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663 (1968), where the Supreme Court held that the District Court must either order an injunction or expressly deny it under 28 U.S.C. § 1253, before the Supreme Court can obtain jurisdiction of the case on appeal.