Stainback v. Mo Hock Ke Lok Po
| Decision Date | 30 December 1948 |
| Docket Number | 474,No. 474,Nos. 52,s. 52 |
| Citation | 336 U.S. 368,93 L.Ed. 741,69 S.Ct. 606 |
| Parties | STAINBACK, Governor of Territory of Hawaii, et al. v. MO HOCK KE LOK PO et al. (two cases). Distributed |
| Court | U.S. Supreme Court |
Appeal from the District Court of the United States for the District of Hawaii.
Mr. Thomas W. Flynn, Jr., of Honolulu. T.H., for appellants.
[Argument of Counsel from page 369 intentionally omitted] Messrs. N. Wai Yuen Char, of Honolulu, T.H., and A. L. Wirin, of Los Angeles, Cal., for appellees.
Mr. C. Nils Tavares, of Honolulu, T.H., for petitioners.
Messrs. A. L. Wirin and Fred Okrano, both of Los Angeles, Cal., for respondents.
The appeal in No. 52, Stainback, Governor of the Territory of Hawaii, et al. v. Mo Hock Ke Lok Po, An Eleemosynary Corporation, et al., and the writ of certiorari in No. 474, a case with the same short title, seek review of a judgment of the District Court of the United States for the District of Hawaii. This judgment was passed by a special three-judge court that was called pursuant to Judicial Code § 266 and by that section's provision was brought directly here on May 7, 1948, in case No. 52. To guard against a frustration of review by this Court's refusal to accept jurisdiction, a timely appeal by the petitioners here in No. 52 has been taken by them in No. 474 to the Court of Appeals for the Ninth Circuit. No judgment on that appeal has been entered by the Court of Appeals and appellants there, the Governor of Hawaii et al., petitioned here on December 21, 1948, for the allowance of a writ of certiorari under 28 U.S.C. § 1254(1), 28 U.S.C.A. § 1254(1).1
A jurisdictional question as to whether Judicial Code § 266 was applicable in the Territory of Hawaii arises in No. 52. It was postponed by order of this Court on June 1, 1948, to the hearing of that case on the merits. This Court postponed action on the petition for certiorari in No. 474 until the hearing of No. 52 on the merits. As the record, arguments and briefs here and the opinions below fully present the case decided by the District Court, to avoid further futile proceedings we now grant the petition for the writ of certiorari to the Court of Appeals before its decree and proceed in No. 474 to a review of the judgment of the District Court of Hawaii. The opinions appeal in 74 F.Supp. 852, Mo Hock Ke Lok Po v. Stainback.
Respondents here were plaintiffs in the trial court. They are Chinese School Associations, a Chinese school, all giving instruction in Chinese, and a teacher of Chinese in Chinese language schools. After December 7, 1941, these schools closed and have not reopened. Prior to that date they had more than 2,000 pupils, several hundred of whom were in the first and second grade, and numerous teachers. Under J.C. § 266 they sought an injunction against officers of the Territory of Hawaii charged by law with the administration of an Act of the Territory 'Regulating the Teaching of Foreign Languages to Children,'2 from enforcing it in any particular against the teaching of foreign languages to the respondents' pupils.
The Act was grounded on a legislative finding 'that the study and persistent use of foreign languages by children of average intelligence in their earl and formative years definitely detract from their ability properly to understand and assimilate their normal studies in the English language.' Revised Laws of Hawaii 1945, § 1871. 'School' was defined as any teaching regularly of two or more persons in a group.3 Requirements for pupils and teachers in foreign language schools were set out.4 Visitation of the foreign language schools by appropriate officials for enforcement purposes was authorized. § 1875. The only sanction for enforcement is by injunction.5 This lack of coercion by fine or imprisonment and the limitation of enforcement to injunction are important factors in our conclusion upon No. 474.
The complaint alleged that in violation of the Fifth Amendment the Act deprived plaintiff schools of the right to manage their property by contracting with instructors and parents for the teaching of Chinese, and the plaintiff teacher of Chinese of his right to follow his occupation.6 See Farrington v. T. Tokushige, 273 U.S. 284, 299, 47 S.Ct. 40 , 409, 71 L.Ed. 646. The judgment of the special district court granted a sweeping permanent injunction against enforcement of the Hawaiian Act. As our conclusions are based solely upon procedural issues, any further discussion of the facts or of the law applicable to the merits is not appropriate.
The complaint asked for and obtained a three-judge court under the provisions of the Judicial Code § 266.7 The minute entries of proceedings and trial and the opinion re applicability of § 266, Judicial Code, 74 F.Supp. at page 858, show suggestions that a special district court under Judicial Code § 266 cannot be called for Hawaii. The statement of jurisdiction laid bare the problem with commendable frankness. It lies at the threshold of any consideration of this appeal.8
Within the present decade, this Court summarized in Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800, the purpose and effect of § 266 and extracted from its history and the precedents for the section's application a congressional requirement of strict construction to protect our appellate docket while assuring the states that exceptionally careful judicial consideration would guard them against all assaults, through federal courts against their legislative statutes or administrative board orders by applications for injunction when those assaults were based on the Federal Constitution. 312 U.S. at pages 250—251, 61 S.Ct. at page 483, 85 L.Ed. 800. While we take judicial notice that since the Phillips case air carriage has brought Hawaii closer to the continent,9 the interference with the normal adjudicatory and appellate processes of the federal judicial system and our docket persists. The power to call a panel of judges under § 266 in Hawaii is to be examined in the light of the Phillips case.
Hawaii is still a territory but a territory in which the Constitution and laws of the United States generally are applicable. 31 Stat. 141, § 5, as amended, 48 U.S.C. § 495, 48 U.S.C.A. § 495; Duncan v. Kahanamoku, 327 U.S. 304, 317, 66 S.Ct. 606, 612, 90 L.Ed. 688. Not only its federal courts but also its territorial courts are of course subject to congressional legislation. 48 U.S.C. § 631, et seq., 48 U.S.C.A. § 631 et seq. The Organic Act for Hawaii, § 86,10 provided in 1900:
When incorporated into the Code, this Court was given 'the jurisdiction of district courts of the United States, and shall proceed therein in the same manner as a district court.' 48 U.S.C. § 642, 48 U.S.C.A. § 642. It now has that jurisdiction.11 The only change that could be considered significant is the more definite integration of the district court for Hawaii into the federal judicial system by definition.12 As jurisdiction of this Court on appeal depends upon whether or not a special three-judge court was properly called13 and not upon the power of this Court to review under Judicial Code § 266, we need not analyze the method of review of the judgments of the District Court of Hawaii.14
Our issue is narrowed to the inquiry of whether Congress intended that Judicial Code § 266 should apply in the Territory of Hawaii under circumstances that would require its application in a similar suit in a state. Congress in discussing an amendment to the Mann-Elkins Act, which amendment evolved into this section, considered the geographical difficulties inherent in the requirement of a three-judge court and the burden thus place on the functioning of the federal judicial system, but decided that such considerations were outweighed by the desirability of having the constitutionality of a state statute passed on by a court comparable to the court of last resort of the state. 45 Cong.Rec. 7253—57. It is to be noted that nowhere in § 266 is mention made of territories nor as far as has been called to our attention in the congressional debates and reports relating to this section and its amendments.
While, of course, great respect is to be paid to the enactments of a territorial legislature by all courts as it is to the adjudications of territorial courts,15 the predominant reason for the enactment of Judicial Code § 266 does not exist as respects territories. This reason was a con- gressional purpose to avoid unnecessary interference with the laws of a sovereign state.16 In our dual system of government, the position of the state as sovereign over matters not ruled by the Constitution requires a deference to state legislative action beyond that required for the laws of a territory.17 A territory is subject to congressional regulation.18
When the long-established rule of strict construction of Judicial Code § 266 and that of protection of the docket of this Court is also considered in conjunction with the necessary interference with the normal operations of the federal judicial system by the establishment of the three-judge requirement in Hawaii, we are not persuaded that Congress intended § 266 to cover Hawaii. See 45 Cong.Rec. 7253-57. Despite its generality the words of § 266 have been strictly construed so that 'statute of a State' does not include ordinances; 'officer of such State' means one with authority to execute or administer a state-wide policy.19
It is not merely the absence of the word 'territory' from § 266 that...
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