Barn Ballroom Co. v. Ainsworth, Civ. A. No. 115.

• Decision Date: 08 May 1946
• Docket Number: Civ. A. No. 115.
• Citation: 67 F. Supp. 299
• Court: U.S. District Court — Eastern District of Virginia
• Parties: BARN BALLROOM CO., Inc., v. AINSWORTH et al.

67 F. Supp. 299

BARN BALLROOM CO., Inc., v. AINSWORTH et al.

Civ. A. No. 115.

District Court, E. D. Virginia, Newport News Division.

May 8, 1946.

Ben Jacobs and A. L. Bivins, both of Newport News, Va., for plaintiff.

Harry H. Holt, Jr., U. S. Atty., of Hampton, Va., and Walkley E. Johnson, Asst. U. S. Atty., of Belle Haven, Va., for defendants.

HUTCHESON, District Judge.

This is a proceeding brought by the Barn Ballroom Company, a corporation, against Rear Admiral W. L. Ainsworth, United States Navy, Commandant of the Fifth Naval District, and Brigadier General Rollin L. Tilton, United States Army, Commanding Officer, Fortress Monroe, Virginia, seeking an injunction to enjoin the defendants from enforcing an order issued by their authority, declaring the place of business of the plaintiff "out of bounds" or "off limits" to enlisted military personnel.

The defendants have filed a motion to dismiss upon the ground that the Court lacked jurisdiction of the subject matter of the action for the reason that the defendants are officers of the United States of America and this suit is, in substance, an action against the United States, which has not consented to be sued nor waived its immunity from suit. The plaintiff subsequently has filed an amended complaint. The motion will be considered as directed at both the original complaint and the amended complaint.

It is my understanding that neither party desires to introduce further evidence at this time. Am I correct in that?

Mr. Johnson: The Government does not desire to.

Mr. Jacobs: That is correct, sir.

The Court: The pleadings as filed have been examined rather carefully, especially with respect to the allegation in regard to jurisdiction. I have come to the conclusion that the jurisdiction is sufficiently alleged under the liberality of the Rules of Civil Procedure, upon two theories: There is an allegation of the diversity of citizenship, and the requisite value of the subject matter. I think that the complaint and the amended complaint also are sufficient to raise the issue of a federal question involved in that the subject matter revolves around the action taken under the laws of the United States. I am, therefore, of opinion that the jurisdiction of this court has been sufficiently alleged in the pleadings.

The case presents two questions of law, as I view it.

The first is, Does the Court have jurisdiction of the subject matter? That is, in view of the motion which has been filed by the defendants, whether it is a suit against the United States, in which event the motion should be sustained. If the Court were of opinion that it is not a suit against the United States, then the motion should not be sustained.

The second question of law involved, as I view it, is, Does the Court have authority to review the action of the military in its dealings with the property or rights of civilians doing business with the public, including members of the armed forces, such civilians not being in the land or naval forces or in the militia in actual service in time of war or public danger?

Considering these questions in order, I do not deem it necessary to discuss the various legislative enactments and Executive Orders under which the Army and Navy operated. These are well known, and a discussion of the source of authority would serve no useful purpose.

In support of the motion to dismiss, which involves the question now being discussed, the defendants introduced in evidence copies of War Department Circular No. 367, dated September 9, 1944, War Department Circular No. 134, dated May 4, 1945, and Court Martial Orders No. 1 of 1942, of the Navy Department, specifically the provisions appearing on page 135, as the pertinent regulations under which the defendants acted in declaring the place out of bounds. These several regulations to which I have referred are relied upon as the authority under which the Army and Navy have set up what is known as the Joint Army-Navy Disciplinary Control Board. That Board, among other duties, has that of recommending in its discretion that orders be issued declaring certain areas off limits to service personnel. An examination of the regulations indicate their underlying purpose to be that of promoting the welfare of the enlisted personnel and maintaining discipline and preventing misconduct on the part of such personnel. Under the regulations, it is contemplated that such recommendation, to which I have referred, shall be made after investigation and either with or without previous warning to the proprietor of the affected establishment. The Board may also recommend the removal of such restrictions, in its discretion, and upon a showing that the conditions complained of have been eliminated.

As respects the Army (still discussing the regulations), the commanding general of the service command may enter such order after consultation with senior officers of units and installations not under his control, and in an emergency the local commander may enter such order and report to the service commander his reasons.

The naval regulation to which I have referred expressly states that such action is an administrative action within the discretion of the commanding officer.

The testimony which has been introduced is to the effect that the order now being considered was issued pursuant to a recommendation of the local Joint Army and Navy Disciplinary Control Board, and that the local commander at Fort Monroe reported the action to the commander of the service command.

In support of the motion to dismiss, the defendants rely principally upon the case of Ferris v. Wilbur, 27 F.2d 262, which is a decision of the Fourth Circuit Court of Appeals and involves a case tried in this court. An examination of that case discloses that it is not analogous to the instant case. There the action complained of was taken pursuant to the express direction of Congress, which had specifically directed the establishment of a naval mine depot for the storage of explosives. In accordance with the act of Congress, in that case the President by proclamation designated a specific area as the site for the depot, near Yorktown, Virginia. The appropriate officers of the Navy proceeded to carry out the orders of their superiors in the erection of such storage place. It thus appears that express orders to do the identical act complained of originated with the Government, acting through the legislative branch. Carrying out the act pursuant to that expressed governmental policy involved no discretion on the part of the Secretary of the Navy or of his subordinates.

In the case at bar there was no congressional direction that the plaintiff's establishment be placed out of bounds. So far as the record discloses, no such direction emanated from either the Secretary of War or the Secretary of the Navy, nor has any such direction been issued by any officer of either establishment superior in rank to the defendants. The order complained of had its genesis in a recommendation of the local Joint Disciplinary Control Board, and pursuant to that recommendation the order was issued. The commanding officer of Fort Monroe reported to his superior, not that such order had been received and carried out, but that such order had been issued. The Commandant of the Fifth Naval District reported to no one, and it appears that the defendants neither obtained authority in advance nor that such authority was required. Therefore, the action complained of appears to be the exercise of a discretion vested in the local commanders and is in no sense an act performed in carrying out an expressed governmental policy.

I conclude, therefore, that this is not a suit against the United States, but is a suit seeking to review the action of local military commanders performed in the exercise of a discretion vested in them, and that the defendants are the proper parties.

Now, turning to the second question. No case has come to my attention in which the factual situation was the same as in this case. The underlying principles involved are not new. The situation, applied to the facts of this case, may be summed up in a quotation from the case of Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375. In that case the court, 287 U.S. at page 401, 53 S.Ct. at page 196, 77 L.Ed. 375, said: "What are the allowable limits of military discretion, and whether or not they have been over-stepped in a particular case, are judicial questions."

The courts have repeatedly been called upon to consider cases in which the action of the military involved the rights of the civilian. Such situations have been the cause of controversy and litigation since long before this nation was formed. The most recent discussion of the principle involved by the Supreme Court is found in its opinion in the case of Duncan v. Kahanomoku and White v. Steer, 66 S.Ct. 606. That case was cited to me at the argument of this case. In addition to that case, I have examined a number of other cases, which I shall not take the time to cite at this phrase of the case.^* I do call attention particularly, however, to Sterling v. Constantin, and to the case of Ex Parte Milligan, 71 U.S. 2, 18 L.Ed. 281, both of which contain comprehensive and enlightening discussions of the limits beyond which the military may not go in dealing with the persons and rights of civilians. A detailed discussion and historical review at this time of the basic principles involved, I do not consider necessary. Suffice it to say that the principles enunciated in the cases which I have examined, when applied to the facts of this case, lead me to the conclusion that there is a responsibility upon the Court to review the action of the defendants.

The right of a civilian engaged in a legitimate occupation is a property right of which he may not be deprived except by due process of law under the Fifth Amendment of the Constitution.

An ex parte hearing by the Joint...