United States v. Gordon Kiyoshi Hirabayashi, 45738.

• Decision Date: 15 September 1942
• Docket Number: No. 45738.,45738.
• Citation: 46 F. Supp. 657
• Parties: UNITED STATES v. GORDON KIYOSHI HIRABAYASHI.
• Court: U.S. District Court — Western District of Washington

46 F. Supp. 657

UNITED STATES v. GORDON KIYOSHI HIRABAYASHI.

No. 45738.

District Court, W. D. Washington, N. D.

September 15, 1942.

J. Charles Dennis, U. S. Atty., and G. D. Hile and Allan Pomeroy, Asst. U. S. Attys., all of Seattle, Wash., for plaintiff.

Frank L. Walters, of Seattle, Wash., for defendant.

BLACK, District Judge.

The indictment involved in this action in Count I charges the defendant, a person of Japanese ancestry residing at Seattle in Military Area No. 1, with violating Civilian Exclusion Order No. 57 by failing to report to the Civilian Control Station, and in Count II charges said defendant with violating the curfew provision of Public Proclamation No. 3 issued by the Military Commander of the Western Defense Command. Upon arraignment, the defendant pleaded not guilty to each count and was given the privilege of interposing motion or demurrer to the indictment within ten days.

The defendant, after filing an original demurrer, later, pursuant to court permission, interposed an amended demurrer to each such count of the indictment upon the grounds that the orders and proclamations involved are unconstitutional by virtue of being in violation of the Fifth Amendment and of Article 4, Section 2, Clause 1, of the Constitution of the United States, and also are not authorized by Executive Order of the President or by any valid legislative act or law of Congress.

The defendant at the time of filing such amended demurrer, without any permission, filed a plea in abatement alleging that the defendant is a natural born citizen of this country, aged twenty-four, bearing true faith and allegiance to the United States and none to Japan. The defendant two weeks prior to the filing of said plea in abatement asked for and was granted permission to file a motion to make the indictment more definite and certain. No such motion was ever filed nor has the defendant at any time even to this date requested permission to interpose such or any plea in abatement.

The government has moved to strike such plea and has also demurred to same.

The matter was presented to the court after oral argument supplementing very extensive briefs which in the aggregate cited about one hundred thirty court decisions and several texts. It is obvious that no analysis of such a mass of citations can be here indulged in without most tediously extending this opinion.

In substance and effect the defendant's position is that regardless of how critical the war perils, of how necessary and vital the military area, and of how essential to American success in this conflict the curfew provisions and evacuation orders applicable to those of Japanese ancestry in such military area, may be that the armed forces of this country and our government are absolutely helpless to make or enforce any such curfew provisions or exclusion orders until a Constitutional amendment has been proposed, voted by both houses of Congress, and finally adopted by three-fourths of the states.

It must not for an instant be forgotten that since Pearl Harbor last December we have been engaged in a total war with enemies unbelievably treacherous and wholly ruthless, who intend to totally destroy this nation, its Constitution, our way of life, and trample all liberty and freedom everywhere from this earth. It must be realized that civilization itself is at stake in this global conflict.

After grave and careful consideration of the arguments and authorities presented and of the extremely important phases of this question, I am satisfied that Executive Order 9066, Public Law 503, Act March 21, 1942, 18 U.S.C.A. § 97a, the curfew regulation and Exclusion Order 57 are constitutional and valid, that the indictment is sufficient and that the attack the defendant has made against it must fail.

The attempted plea in abatement should be stricken. It was tardily interposed without permission. To permit it to stand would be a mistake by virtue of the precedent. However, the striking of it will not at all decrease or affect any rights of defendant.

The indictment in merely charging the defendant with being of Japanese ancestry permits the implication that he was born in the United States and is therefore a citizen. At the trial, defendant will, of course, be permitted to introduce evidence to such effect if he so desires.

At the close of the oral argument counsel were advised that my views as expressed in Ex parte Ventura, et al., D.C., 44 F.Supp. 520, were quite at variance with the defense arguments in this case and that unless I came to the conclusion that I was then mistaken that of necessity my decision would be adverse to defendant's contentions now before me. It suffices to say that I am still of the opinion that my views as contained in that decision are correct.

It was recently stated in State of California v. Anglim, 9 Cir., 129 F.2d 455, 460: "* * * The same act at one time may be regarded as constitutional by facts judicially noted or other facts then shown, and at another time, on other known or proved facts, be held unconstitutional. It was so held in an opinion by Mr. Justice Holmes in Chastleton Corp. v. Sinclair, 264 U.S. 543, 548, 549, 44 S.Ct. 405, 68 L.Ed. 841, in determining the constitutionality of the rent regulating law for the District of Columbia."

And so the decision of this case must be in the light of the unprecedented world conflict which so suddenly engulfed this nation, in the light of this being a declared Military Area, in the light of the dangers that would confront us if defendant should prevail, in the light of the advantage to this nation and actually to those of Japanese ancestry from the orders and proclamations which defendant attacks.

This Pacific Coast has been shelled at Santa Barbara, Seaside, Vancouver Island, ships have been submarined without warning in sight of shore, sinking has occurred near the entrance to the straits that lead to Puget Sound, Dutch Harbor has been bombed, and a formidable force of Japanese soldiers occupies Kiska Island. Who can guarantee that they who have already invaded the western Aleutians have not since Pearl Harbor been perfecting plans to attack by carrier planes and suicide parachutists the vital Seattle bomber factories, our docks so essential to Alaska's life, the navy yard at Bremerton just across the bay?

The Commander in Chief of our Army and our Navy, the President, in exercise of the war authorities granted him by the Constitution and by certain legislation, on February 19, 1942, issued Executive Order 9066. Said Executive Order provides that the Secretary of War and Military Commanders designated by him were authorized and directed, whenever, they deemed such action necessary "* * * to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion * * *."

On February 20, 1942, the Secretary of War designated Lieutenant General DeWitt to carry out the duties and responsibilities imposed by said Executive Order for that portion of the United States embraced in the Western Defense Command, which includes Alaska, Washington, Oregon, California and five other states.

On March 2, 1942, in said Public Proclamation No. 1 General DeWitt declared that the entire Pacific Coast was by its geographical location "* * * particularly subject to attack, to attempted invasion by the armed forces of nations with which the United States is now at war, and, in connection therewith, is subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations:"

On March 21, 1942, Public Law No. 503 enacted by Congress became effective. It reads, in part: "* * * whoever shall * * * leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive Order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor * * *."

In Public Proclamation No. 3, issued March 24, 1942, as aforesaid, it is stated that: "The present situation within these Military Areas (including Military Area No. 1) and Zones requires as a matter of military necessity the establishment of certain regulations pertaining to all enemy aliens and all persons of Japanese ancestry within said Military Areas and Zones thereof."

Civilian Exclusion Order No. 57, issued May 10, 1942, provided that after Saturday noon, May 16, 1942, "all persons of Japanese ancestry, both alien and non-alien, be excluded from that portion of Military Area No. 1," consisting of that portion of Seattle in which the indictment alleged defendant resided, and further required that persons of Japanese ancestry personally or by representative as therein specified should report to the therein specified Civil Control Station on May 11 or May 12, 1942. Such Civilian Exclusion Order No. 57 then gave instructions relative to the regulations for evacuation to the Assembly Center.

In the very recent opinion under date of July 29, 1942, of United States District Judge F. Ryan Duffy in the Lincoln Seiichi Kanai habeas corpus proceeding before him, in which such petitioner, an American citizen of Japanese ancestry, challenged the...