Mo Hock Ke Lok Po v. Stainback, Civ. A. No. 765.

• Decision Date: 22 October 1947
• Docket Number: Civ. A. No. 765.
• Citation: 74 F. Supp. 852
• Parties: MO HOCK KE LOK PO et al. v. STAINBACK et al.
• Court: U.S. District Court — District of Hawaii

74 F. Supp. 852

MO HOCK KE LOK PO et al. v. STAINBACK et al.

Civ. A. No. 765.

District Court, Hawaii.

October 22, 1947.

Wai Yuen Char, of Honolulu, T. H., and A. L. Wirin, of Los Angeles, Cal., for plaintiffs.

Rhoda V. Lewis, Asst. Atty. Gen., and Thomas W. Flynn, Deputy Atty. Gen., for defendants.

J. Russell Cades and Edward Z. Buck, both of Honolulu, T. H., amici curiae, on question of jurisdiction.

Before DENMAN, Circuit Judge, and McCORMICK and METZGER, District Judges.

DENMAN, Circuit Judge.

Plaintiffs seek a judgment declaring unconstitutional Act 104 of the Hawaiian Legislature enacted on May 1, 1943, entitled "An Act Regulating the Teaching of Foreign Languages to Children," now embodied in Hawaiian Rev. Law, Chapter 31. They also seek to enjoin the defendants Superintendent of Public Instruction, the Governor and the Attorney General from their enforcement of that Act.

Two of the plaintiffs are Wah Chan Thom, a Hawaiian citizen of Chinese ancestry, having three children in the public schools of Hawaii, one 13 years of age and in the seventh grade, one eight years of age and in the third grade, and one three years of age, and Wilfred Chong, of the same citizenship and ancestry, having a child of thirteen in the sixth grade and one of nine in the third grade, and one of five attending kindergarten. They seek to have their children taught the Chinese language without the restrictions imposed by the challenged Act.

The remaining plaintiffs are a teacher of the Chinese language, Leong Nget Cho, a Hawaiian citizen, and the three Hawaiian eleemosynary corporations chartered to teach and seeking to teach the Chinese language.

The evidence adduced establishes that each of the corporation plaintiffs has a matter in controversy exceeding, exclusive of interest and costs, the sum of $3,000 required by 28 U.S.C. § 41(1), 28 U. S.C.A. § 41(1). As to the other plaintiffs the amended complaint has no statement as to the amount in controversy. The court sua sponte notes that the jurisdictional amount of § 41(1) is required of all civil suits litigating constitutional questions except those stated in the succeeding 27 paragraphs. No one of these gives the district courts jurisdiction of a deprivation of a right created by a territorial law, though paragraph (14) gives such jurisdiction to such a deprivation by a state law.¹ It thus seems that Congress intends that a territorial invasion of the right in controversy involving less than $3,000 should have its litigation in the territorial courts.

We will therefore be required to dismiss the complaint as to the plaintiffs, the teacher of Chinese and the parents and children, unless within twenty days herefrom the complaint be amended to contain allegations of the required jurisdictional amounts in controversy.

The striking provision of the Act is the extraordinary definition of what constitutes a school in which a foreign language is taught. Section 1872 provides, "Definitions. As used in this chapter: `School' means any person, firm, group of persons, unincorporated association, corporation, establishment, or institution, which teaches, with or without fees, compensation or other charges therefor, any language other than the English language, as a course of study, to two or more persons as a group, as a regular and customary practice."

The Hawaiian statute prohibits the teaching of any language other than English in such manner to all children who have not passed the first four grades of public or private attendance. Such attendance is required in the school year after the child has reached six years of age. Haw.Rev.L.Sec. 1830. This means that no parent may have his child so taught before he has attended any public school and thereafter up to ten years of age at least. It is up to a later age if for sickness or some other reason he has not then passed the fourth grade. Thereafter the child must pass each succeeding grade through the eighth with a score "not lower than normal" or reach the age of fifteen before he may so be taught a foreign language.²

Since the testimony is that a very large number of Hawaiian children of fifteen seek their own living and support at that age, it is apparent that as to most of them their parents must have taught them a foreign language before that time if one is to be acquired.

Defendants claim that we should not construe the definition of a school as applying to a Chinese speaking mother who daily teaches her two children the language of the home. Assuming this true, it certainly would apply to a religious Chinese descended mother having an educated cousin teach two of her children in her home the truths of Confucius, even orally, explaining the words of that spiritual guide in the language in which they are spoken and are recorded.

The parents' right to have their offspring taught a foreign language is one of the fundamental rights guaranteed by the due process clause of the Fifth and Fourteenth Amendments. A teacher of such languages in a Nebraska public school to children in the eighth grade or below cannot be deprived by the state legislature of the right to pursue that vocation. Meyer v. State of Nebraska, 262 U.S. 390, 400, 43 S. Ct. 625, 67 L.Ed. 1042, 29 A.L.R.1446. The Supreme Court reversed a judgment denying an injunction restraining state officials from enforcing the above Nebraska law against such a teacher. Nebraska District, etc., v. McKelvie sub. nom. Bartels v. State of Iowa, 262 U.S. 404, 411, 43 S.Ct. 628, 67 L.Ed. 1047.

The Circuit Court of Appeals for the Ninth Circuit held that an injunction should be granted against the enforcement of a Hawaiian statute regulating foreign language schools. In so doing it based its opinion on the following statement of the natural law of the relationship of parent and child from an opinion of Mr. Justice Harlan in Berea College v. Commonwealth of Kentucky, 211 U.S. 45, 67, 68, 29 S.Ct. 33, 63 L.Ed. 81. "`The capacity to impart instruction to others is given by the Almighty for beneficent purposes and its use may not be forbidden or interfered with by government — certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety. The right to impart instruction, harmless in itself or beneficial to those who receive it, is a substantial right of property, especially, where the services are rendered for compensation. But, even if such right be not strictly a property right, it is, beyond question, part of one's liberty as guaranteed against hostile state action by the Constitution of the United States. This court has more than once said that the liberty guaranteed by the Fourteenth Amendment embraces "the right of the citizen to be free in the enjoyment of all his faculties," and "to be free to use them in all lawful ways." * * * If pupils, of whatever race — certainly, if they be citizens — choose with the consent of their parents or voluntarily to sit together in a private institution of learning while receiving instruction which is not in its nature harmful or dangerous to the public, no government, whether federal or state, can legally forbid their coming together, or being together temporarily for such an innocent purpose.'" Farrington v. Tokushige, 9 Cir., 11 F.2d 710, 713, 714. On certiorari the Supreme Court, 273 U.S. 284, pages 298, 299, 47 S.Ct. 406, at page 409, 71 L.Ed. 646, sustained that decision, stating.

"* * * Enforcement of the act probably would destroy most, if not all, of them the schools; and, certainly, it would deprive parents of fair opportunity to procure for their children instruction which they think important and we cannot say is harmful. The Japanese parent has the right to direct the education of his own child without unreasonable restrictions; the Constitution protects him as well as those who speak another tongue. * * *

"The general doctrine touching rights guaranteed by the Fourteenth Amendment to owners, parents and children in respect of attendance upon schools has been announced in recent opinions. Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446; Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047; Pierce v. Society of Sisters, 268 U. S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L. R. 468. While that amendment declares that no state shall `deprive any person of life, liberty, or property, without due process of law,' the inhibition of the Fifth Amendment, `No person shall * * * be deprived of life, liberty, or property, without due process of law,' applies to the federal government and agencies set up by Congress for the government of the territory. Those fundamental rights of the individual which the cited cases declared were protected by the Fourteenth Amendment from infringement by the states, are guaranteed by the Fifth Amendment against action by the territorial Legislature or officers."

Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468, so relied upon in the Farrington case, sustained an injunction against enforcement of an Oregon statute forbidding the general education of children in Catholic schools. In granting such an injunction to such a school corporation the Court stated at page 535, of 268 U.S., at page 573, of 45 S.Ct.,

"* * * The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

"Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty which the Fourteenth Amendment guarantees. Accepted in the proper sense, this is true. Northwestern Nat. Life Ins. Co. v. Riggs, 203 U.S. 243, 255, 27...