Alexander v. De Witt
Decision Date | 10 March 1944 |
Docket Number | No. 10514.,10514. |
Citation | 141 F.2d 573 |
Parties | ALEXANDER v. DE WITT et al. |
Court | U.S. Court of Appeals — Ninth Circuit |
Lorrin Andrews and Avery M. Blount, both of Los Angeles, Cal., for appellant.
Charles H. Carr, U. S. Atty., and John M. Gault, Asst. U. S. Atty., both of Los Angeles, Cal., and John L. Burling, Nanette Dembitz, and Elmer Million, Attys., War Division, Department of Justice, all of Washington, D. C., for appellees.
Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.
This appeal is from a judgment which granted a motion to dismiss, and dismissed, as to appellees, an action by appellant, Kenneth Alexander, hereafter called plaintiff, against appellees and other defendants. Appellees are John L. De Witt and R. B. Hood. Their codefendants were L. F. Sloan, L. G. White, Randell Larson, Hugh T. Fullerton and three whom plaintiff, not knowing their true names, called Doe One, Doe Two and Doe Three. Appellees' co-defendants were never served with process and never appeared. The ground of the motion to dismiss was that, as to appellees, the complaint failed to state a claim upon which relief could be granted.
The complaint was filed on May 7, 1943. It was in two counts. The second count was stricken out on plaintiff's own motion. The first count — which hereafter will be called the complaint — stated that plaintiff was a citizen of the United States and a resident of Los Angeles, California; that De Witt was the Commanding General of the Western Defense Command and Fourth Army of the United States; that Hood was a special agent of the Federal Bureau of Investigation of the Department of Justice and was in charge of the Bureau's office at Los Angeles; that Sloan was a supervising officer of the War Relocation Authority and was in charge of its office at Los Angeles; that White was an investigator for the headquarters of the Western Defense Command and was stationed at Los Angeles; that Larson, Fullerton, Doe One, Doe Two and Doe Three were Army officers under De Witt's Command; that Doe One, Doe Two and Doe Three were members of the Board hereafter mentioned; that Hood, Sloan, White, Larson, Fullerton, Doe One, Doe Two and Doe Three were under the orders and control of De Witt; and that on February 27, 1943, Larson, acting under the orders and control of De Witt, issued a notice1 to plaintiff, a copy of which was attached to the complaint as Exhibit E. The notice read as follows:
The complaint stated that plaintiff appeared before the board on March 11, 1943, at the time and place specified in the notice,3 and answered under oath questions propounded to him by the board; and that on April 21, 1943, he was served with a copy of an individual exclusion order (No. 1K-7) issued by De Witt on April 14, 1943, a copy of which was attached to the complaint as Exhibit F. The order read as follows:
7 Federal Register 3830, and from entering into, being in, or remaining in, from and after said time and date, Military Area No. 1 of Florida, Military Area No. 1 of Alabama, Military Area No. 1 of Mississippi, Military Area No. 1 of Louisiana, Military Area No. 1 of Texas and Military Area No. 1 of New Mexico, as defined and designated by Public Proclamation No. 1, dated May 30, 1942, Headquarters, Southern Defense Command, San Antonio, Texas, Walter Krueger, Lieutenant General, U. S. Army, Commanding 7 Federal Register 6754.
The complaint stated that the notice5 and the order violated the Constitution of the United States and hence were void; that defendants6 had nevertheless enforced the notice and the order and had threatened to and would, unless restrained, continue to...
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