Alesna v. Rice, Civ. A. No. 769.

• Citation: 74 F. Supp. 865
• Decision Date: 04 December 1947
• Docket Number: Civ. A. No. 769.
• Parties: ALESNA et al. v. RICE et al.
• Court: U.S. District Court — District of Hawaii

74 F. Supp. 865

ALESNA et al. v. RICE et al.

Civ. A. No. 769.

District Court of Hawaii.

December 4, 1947.

COPYRIGHT MATERIAL OMITTED

Harriet Bouslog, and Myer C. Symonds, both of Honolulu, T. H., for plaintiffs.

Rhoda Lewis, Acting Atty. Gen., and Michiro Watanabe, Deputy Atty. Gen., Territory of Hawaii, for defendants.

Livingston Jenks, of Honolulu, T. H., amicus curiae for Hawaii Employers Council.

McLAUGHLIN, District Judge.

For a statement of the facts of this case which arises under the Civil Rights Act, 28 U.S.C.A. § 41(14), grows out of the 1946 strike in the sugar industry of Hawaii, and involves a criminal contempt indictment pending in a Territorial Circuit Court, see its initial phase reported in D.C., 69 F.Supp. 897. This reference discloses that a preliminary injunction issued restraining the defendant Attorney General of the Territory from proceeding further with the prosecution of the plaintiffs for contempt of the Territorial Court.

As mentioned in the intervening case of Hall et al. v. Hawaiian Pineapple Company, Ltd., D.C. 72 F.Supp. 533, at page 536, the issues left in balance should have been determined earlier. However, with the criminal contempt proceeding in the Fifth Circuit Court held up by the preliminary injunction, the plaintiffs were not overly insistent upon proceeding to trial and therefore consented to the several extensions of time requested by the Territorial Attorney General's office. When the case began, the then Attorney General was not prepared to reach the constitutional issues, for he was short of assistants and time as he was then serving the Territorial Legislature which was in session at that time. Thereafter, Mr. Tavares resigned as Attorney General and Miss Lewis took over control of the office. While she too directed the office with an inadequate number of assistants, the office in June became involved in the tense pineapple strike described in Hall et al. v. Hawaiian Pineapple Company, supra. Accordingly, the court too being otherwise engaged, numerous stipulations extending time were approved. On July 21, 1947 the defendants filed their Answers. It may be here noted that incidentally as of this date, the Territory has a new Attorney General, though no formal request for substitution has been presented.

On July 22, 1947 the defendants filed this Motion under Federal Rules of Civil Procedure, rule 12(d), 28 U.S.C.A. following section 723c, and it was set for hearing August 26, 1947. Prior to that date, Mr. Jenks applied on behalf of the Hawaii Employers Council for permission to appear in the case as an amicus curiae. The application was resisted by the plaintiffs and favored by the defendants. The request was granted over objection August 11, 1947.

The oral arguments upon this Motion were extensive and when, due to interruptions, they were finally concluded on September 8, 1947, permission was granted to file briefs. On September 12, 1947 the plaintiffs filed a ninety-three page brief, the amicus curiae one of fifty-nine pages and the defendants a two-page memorandum. Until now other court business has prevented the complete digestion of these briefs.

The Motion presents for consideration six of the defenses set up in the Answer. Summarized these are as follows:

1. That the complaint fails to state a cause of action in that the plaintiffs have an adequate remedy in the criminal contempt prosecution in the Territorial Court as there all defenses could be asserted and the constitutional issues raised subject to a right of appeal to the Territorial Supreme Court and, if need be, from there to the U. S. Supreme Court.

2. That the Comity Statute — 28 U.S.C. A. § 379 — denies this court jurisdiction of the complaint.

3. That this court has no jurisdiction to enjoin a Territorial Judge.

4. That such a judge is not a proper party defendant.

5. That the complaint fails to state a cause of action for equitable or any other relief, and

6. That even if the Territorial Court's Amended Restraining Order was void, it will support an indictment for contempt.

At the outset, the court posed for the parties' consideration the correctness of its prior holdings that the Civil Rights Act's remedies were available in Hawaii despite the fact that in conferring jurisdiction upon District Courts Congress omitted the word "Territory". Both agreed with the court that as the Act applies specifically to a Territory and confers upon one, whose civil rights secured by the Constitution and laws of the United States have been denied by another under color of the law of any Territory, a right to sue at law or in equity for redress, 8 U.S.C.A. § 43, jurisdiction exists in a legislative Federal court in a Territory and may be invoked by one in a proper case despite the fact that the Congress left out the word "Territory" in granting jurisdiction of such suits to United States District Courts.

In the light of the history, the objective and the wording of the whole Act, the word "state" appearing in 28 U.S.C.A. § 41(14) should not be narrowly interpreted. Indeed there is more reason under the Civil Rights Act to interpret liberally the word "state" to include "Territory" than to do likewise with reference to 28 U.S.C.A. § 380 as has recently been done by a three-judge court sitting here in the case of Mo Hock Ke Lok Po et al. v. Stainback, Governor, et al., D.C., 74 F.Supp. 852. But see dissent by Denman, Circuit Judge. In that case it has been specifically held that Congress by not including the word "Territory" in 28 U.S.C.A. § 41(14) intended to leave such issues to litigation in Territorial courts unless the Federal jurisdictional amount was alleged. Perhaps that ruling is binding here. But, regardless, to hold that for the purposes of this Act, the word "state" does not include Territory would be to prevent the will of Congress having its effect in this part of the United States. Yet Congress intended to protect the constitutional and Federal civil rights of all people everywhere in the nation. See Screws v. United States, 1945, 325 U.S. 91, 98, 65 S.Ct. 1031, 89 L.Ed. 1495, 162 A.L.R. 1330. Since 1900 Hawaii has been an incorporated part of the United States, and the Federal rights of its people are not a single iota less valuable than are those of the inhabitants of a state. See 48 U.S.C.A. § 491 et seq. Having created the right, having given this legislative court the jurisdiction of a "court of the United States", 48 U.S.C.A. § 641 et seq., and having made applicable to the two incorporated Territories the criminal provisions of the Act, 18 U.S.C.A. §§ 51, 52, there is no insurmountable obstacle to making effective by judicial action the granted civil remedy in a Territory for such an important right and thus curing what seems to be an over-sight or an imperfection in the statute. Keifer & Keifer v. Reconstruction Finance Corporation, 1939, 306 U.S. 381, 389, 59 S.Ct. 516, 83 L.Ed. 784; Texas & N. O. Railway Co. v. Brotherhood of Railway & S. S. Clerks, 1930, 281 U.S. 548, 568, 50 S.Ct. 427, 74 L.Ed. 1034.

Before reaching the defendants' Motion, counsel for plaintiffs suggested that the court had no jurisdiction to entertain it as the defendants had not appealed from the Order granting the preliminary injunction. 28 U.S.C.A. § 227. Having resisted issuance of the preliminary injunction, plaintiffs argue that defendants cannot be heard again upon the same or similar questions of law, and that the only thing remaining to be done is to proceed to trial. The Court ruled against plaintiffs because it believed, amongst other reasons, that the constitutional issues had not been examined adequately heretofore on account of the Attorney General's reluctance in February to reach them in his argument upon the prayer for a preliminary injunction. The Statute permitting appeals from interlocutory decrees granting preliminary injunctions does not require a party to appeal at that time. He may, at his option, await the final decree and raise all questions by appealing from it. Victor Talking Machine Company v. George, 3 Cir., 1939, 105 F.2d 697. That being so, there is no rule of law which prohibits a party defendant from taking advantage of F.R.C.P. 12(d) in the absence of an Order of the Court deferring consideration of the defenses in point of law until trial. No such order was made here for the essential facts necessary to a consideration of the questions of law are amply set forth in the voluminous pleadings.

Attached to the defendants' Answer, incorporated as a part thereof, are two lengthy exhibits. These exhibits constitute the complete record of all that transpired in the Fifth Circuit Court of the Territory from the date the Lihue Plantation Company applied for equitable relief until the court, upon its own Motion, amended its Restraining Order. Soon after the defendants' Answer was filed, plaintiffs moved to strike paragraphs V and XXIV of the Answer of which these exhibits were made a part on the grounds of redundancy, impertinency, and immateriality. During the course of argument upon this Rule 12(d) Motion, a question arose as to whether or not this court could consider these exhibits to see the basis for the Territorial Court's issuance of its Amended Restraining Order issued by Judge Rice. Plaintiffs argue that it is improper to look behind the Order and besides it is void on its face.

If need be, the court may consider the exhibits attached to and made part of the pleadings of both parties. Together they reveal every step taken in the Territorial Court and are either certified copies (defendants) or copies thereof (plaintiffs). On the other hand, if those attached to the Answer be deemed improper pleading, the defendants' Motion that the court consider them in connection with the Rule 12(d) Motion transforms that into a "speaking Motion" countenanced by the Federal Rules of Civil Procedure. See Rule 12(b) and notes thereunder. See also Samara v. United States, 2...