INTERNATIONAL LONGSHOREMEN'S & WARE. UNION v. Ackerman, Civ. No. 828
| Citation | 82 F. Supp. 65 |
| Decision Date | 18 January 1949 |
| Docket Number | 836.,Civ. No. 828 |
| Court | U.S. District Court — District of Hawaii |
| Parties | INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION et al. v. ACKERMAN et al. |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Harriet Bouslog and Bouslog & Symonds, all of Honolulu, Hawaii, for plaintiffs.
Rhoda V. Lewis, Asst. Atty. Gen., Territory of Hawaii, and Wendell F. Crockett, Deputy County Atty,. County of Maui, of Wailuku, Maui, T. H., for defendants.
Before BIGGS, Circuit Judge, METZGER, Chief Judge, and HARRIS, District Judge.
The two cases at bar may be disposed of in one opinion. The general jurisdiction of the court (its jurisdiction under Section 266 of the former Judicial Code and under Section 2281 of revised Title 28 of the United States Code, Annotated, effective September 1, 1948, aside) is alleged to be founded on the second, third and fourth Federal Civil Rights Acts, Act of May 31, 1870, 16 Stat. 140, Act of April 20, 1871, 17 Stat. 13, and Act of March 1, 1875, 18 Stat. 335, 337, R.S. §§ 1977, 1979, 8 U.S.C.A. §§ 41, 43, 44 and 46, and upon Section 24(14) of the Judicial Code of 1911, now Section 1343 of revised Title 28 U.S.C.A., and upon Amendments I, V, VI, XIV and XIX to the Constitution of the United States. Jurisdiction is also allegedly based upon Section 24(1) of the Judicial Code of 1911, now revised Title 28, Section 1331, U.S.C.A.1
The complaints at the two numbers are quite similar in substance. The International Longshoremen's & Warehousemen's Union (ILWU), a voluntary unincorporated association and labor union, is a plaintiff at each number; Kawano, individually and as a member of the ILWU and as president of what was the Territorial Council of the ILWU, is a plaintiff at No. 828. The no longer existent Territorial Council of the ILWU is also named as a plaintiff at this number. Rania, in his individual capacity and as president of the United Sugar Workers, ILWU, Local 142, is a plaintiff at No. 836. Both Rania and Kawano allege, as indicated, that they sue not only individually but in representative capacities on behalf of the ILWU's membership of approximately 30,000 persons in the Territory of Hawaii. The complaints assert that all other individual plaintiffs are residents of the Territory of Hawaii, members of the ILWU, and are daily wage earners in either the sugar industry or the pineapple industry of the Territory. This is found to be the fact. It is asserted that all the individual plaintiffs at both numbers, either ethnologically or as a matter of mores of the Islands,2 are "members of races other than the Caucasian race". The particulars of these allegations were either proved or stipulated to.3 The races of the individual plaintiffs referred to were variously alleged, and proved or stipulated, to be the Malayan, the Polynesian and the Mongolian, sub widely varying national strains, viz., Filipino, Hawaiian, Hawaiian-Caucasian, Chinese, Japanese, Portuguese and Puerto Rican. These facts possess significance only in relation to the challenges and motions made to the jury commissioners of the Circuit Court of the Second Circuit of the Territory of Hawaii and to the motions and challenges made to the 1947 Maui County grand jury. Most of the individual plaintiffs are alleged, and proved or stipulated to be citizens of the United States. Some of the individual plaintiffs are alleged, and proved or stipulated to be aliens and citizens of the Philippine Republic, or aliens and citizens of Japan, or aliens and citizens of other nationalities. Again we deem these facts to be of significance only in relation to the attack on the jury commissioners or upon the grand jury of Maui County.
The defendants at both numbers are identical except that the defendant, Jean Lane, Chief of Police of Maui County, sued individually and as chief of police at No. 828, is not named as a defendant at No. 836. The defendant, Walter D. Ackerman, Jr., Attorney General of the Territory of Hawaii, is sued individually and as attorney general. The Honorable Ingram M. Stainback, Governor of the Territory of Hawaii, is sued individually and as governor. E. R. Bevins, County Attorney of the County of Maui, and Wendell F. Crockett, Deputy County Attorney of the County of Maui, are sued individually and as County Attorney and Deputy County Attorney respectively. Judge Cable A. Wirtz, a Circuit Judge of the Territory of Hawaii, is sued individually and as one of the jury commissioners of Maui County. The jury commissioners and the 1947 grand jurors of the County of Maui are also sued individually and in their official capacities.
Both complaints allege mutatis mutandis that there were strikes conducted by the ILWU in the sugar and pineapple industries in the Territory; that in furtherance of the objectives of the strikes, viz., improvement in wages, hours and conditions of employment, the individual plaintiffs engaged in "lawful, peaceful and constitutionally protected activities of speech, press and assemblage and of peaceful picketing".
The complaint at No. 828 alleges that Lane, Chief of Police of Maui County, caused the individual plaintiffs (other than Kawano) to be arrested and charged them with violations of an act of the Territory generally known as the unlawful assembly and riot statute, Revised Laws of Hawaii 1945, c. 277, Sections 11570-11584; that the plaintiffs Barbosa, Maile, Degamo, Kaopuiki, Nitta, Ah Ho, Aikala, Yagi, Arruiza, Oda and Matsuura were charged in a complaint executed before a district magistrate of Maui County with violations of the same statute; and that the plaintiffs Makekau, Siruet, Baldua, Sipe and Mendes were similarly charged in a complaint also executed before a local magistrate. It is asserted also that the defendants Ackerman, Stainback, Bevins and Crockett have sought to present criminal charges framed on the complaints to the grand jurors of Maui County; that the defendants, Pombo and Chatterton, and Judge Wirtz, as jury commissioners, chose and composed Maui County grand juries in such a manner as to violate the constitutional rights of the plaintiffs and in violation of the laws of the United States and of the Territory of Hawaii.
The complaint goes on to recite that certain individual plaintiffs (particularly designated hereinafter) filed motions and challenges to the grand jury and to the methods employed in selecting its members for the reasons set out in the complaint, to be discussed hereinafter, that these charges and challenges were heard by the Honorable Albert M. Cristy, a Circuit Judge of the Territory of Hawaii, in mid-September 1947, but that he held the motions and challenges to be without merit, refusing to disqualify or to dismiss the grand jury. The plaintiffs then allege that the unlawful assembly and riot statute is unconstitutional in that it deprives them of their rights of free speech, press and assemblage and will subject them to criminal prosecutions if they exercise their constitutional rights. Agliam, Abraham Makekau, and thirty-four other additional plaintiffs were added as parties to the complaint by stipulation and by order of the court. It is alleged that these thirty-six individuals are held to bail under a complaint charging them also with violation of the unlawful assembly and riot statute.
The complaint closes with the prayers, inter alia, (1) that a temporary and permanent injunction issue from this court prohibiting the enforcement of the unlawful assembly and riot act against the plaintiffs and enjoining the submission to the grand jury of facts relating to the plaintiffs' actions for indictment based on the unlawful assembly and riot act; (2) that this court declare the statute to be unconstitutional; (3) that we adjudge the method used in selecting the grand juries of Maui County to be unconstitutional and contrary to law and order the grand jury discharged; and (4) that a three judge court be convened pursuant to Section 266 of the Judicial Code of 1911, to determine the case.
The complaint at No. 836 attacks not only the unlawful assembly and riot statute referred to in the complaint at No. 828, but also attacks the conspiracy statute of the Territory of Hawaii, Revised Laws of Hawaii 1945, c. 243, Sections 11120-11130. It asserts inter alia that the defendants Ackerman, Stainback, Bevins and Crockett presented "purported criminal charges alleging violation of the * * * unlawful assembly and riot statute and the conspiracy statute" to the grand jurors of Maui County who returned an indictment4 against the individual plaintiffs (other than Rania) based on the two statutes referred to. The complaint then makes the same allegations respecting the jury commissioners and the means employed in selecting grand juries as are set out in the complaint at No. 828 and alleges that the unlawful assembly and riot statute and the conspiracy statute are unconstitutional. The complaint then goes on to assert that the defendants in two criminal complaints entitled Territory of Hawaii v. Diego Barbosa, et al., and Territory of Hawaii v. Abraham Makekau, et al., pending in the Circuit Court of the Second Circuit, referred to at length hereinafter under later headings, challenged the means employed to select the grand juries of Maui County; that these challenges were heard by Judge Cristy and were disposed of unfavorably to the defendants. It is alleged also that all the defendants in the criminal complaints referred to are plaintiffs at No. 836.
The complaint asserts that unless the unlawful assembly and riot statute and the conspiracy statute are held to be unconstitutional and void all the plaintiffs will be deprived of their constitutional rights and "that it is necessary and imperative that this court assume jurisdiction in the matter and restrain and enjoin defendants from prosecuting or taking any...
To continue reading
Request your trial