Ex parte Kumezo Kawato. riginal

• Decision Date: 09 November 1942
• Docket Number: No. 10,O,10
• Citation: 87 L.Ed. 58,63 S.Ct. 115,317 U.S. 69
• Parties: Ex parte KUMEZO KAWATO. riginal
• Court: U.S. Supreme Court

317 U.S. 69

63 S.Ct. 115

87 L.Ed. 58

Ex parte KUMEZO KAWATO.

No. 10, Original.

Argued and Submitted Oct. 12, 1942.

Decided Nov. 9, 1942.

Mr. Kumezo Kawato, pro se.

Mr. Lasher B. Gallagher, of Los Angeles, Cal., for respondent.

Mr. Justice BLACK delivered the opinion of the Court.

The petitioner, born in Japan, became a resident of the United States in 1905. April 15, 1941, he filed a libel in admiralty against the vessel Rally in the District Court for the Southern District of California. He claimed wages were due him for services as a seaman and fisherman on the Rally, and sought an allowance for maintenance and cure on allegations that he had sustained severe injuries while engaged in the performance of his duties. Claimants of the vessel appeared and filed an answer on grounds not here material, but later, on January 20, 1942, moved to abate the action on the ground that petitioner, by reason of the state of war then existing between Japan and the United States, had become an enemy alien and therefore had no 'right to prosecute any action in any court of the United States during the pendency of said war.' The District Judge granted the motion. Petitioner sought mandamus in the Circuit Court of Appeals for the Ninth Circuit to compel the District Court to vacate its judgment and proceed to trial of his action, but his motion for leave to file was denied without opinion. We granted leave to file in this Court, 316 U.S. 650, 62 S.Ct. 1301, 86 L.Ed. 1732, and the cause was submitted on answer, briefs and oral argument.

Although the Court's order of abatement for the duration of the war rested solely on the ground of petitioner's status as an alien enemy, it has been argued here that the writ should be denied because the Court could have dismissed the bill on other grounds, particularly claimed defects in the allegations of the libel. These contentions are irrelevant here. Unless the action was properly abated for the reasons set out in the motion and the Court's order, the petitioner is entitled to have the District Court proceed with his action and pass upon the sufficiency of his allegations. This is an essential step in an orderly trial leading to a final judgment from which an appeal will lie to correct errors. If the Court's order of abatement was erroneous, mandamus is the appropriate remedy. 28 U.S.C. 377, 28 U.S.C.A. § 377; McClellan v. Carland, 217 U.S. 268, 279—282, 30 S.Ct. 501, 503, 504, 54 L.Ed. 762; Ex parte Metropolitan Water Co., 220 U.S. 539, 546, 31 S.Ct. 600, 603, 55 L.Ed. 575.

'Alien enemy' as applied to petitioner is at present but the legal definition of his status because he was born in Japan with which we are at war. Nothing in this record indicates, and we cannot assume, that he came to America for any purpose different from that which prompted millions of others to seek our shores—a chance to make his home and work in a free country, governed by just laws, which promise equal protection to all who abide by them. His suit invokes the protection of those laws through our courts both to obtain payment of wages alleged to have been promised him by American citizens for lawful work and reimbursement on account of damages suffered while working for those citizens.

Petitioner contends that he has the right under the common law and treaties to proceed with his action, and that this right is not limited by the statutes. In our view the possibility of treaty rights, which has not been argued extensively, need not be considered. Applicable treaties are ambiguous and should not be interpreted without more care than is necessary in this case. ¹

There doubtless was a time when the common law of England would have supported dismissal of petitioner's action, but that time has long since passed. A number of early English decisions, based on a group concept which made little difference between friends and enemies barred all aliens from the courts. This rule was gradually relaxed as to friendly aliens² until finally in Wells v. Williams, 1 Ld.Raym. 282 (1698), the Court put the necessities of trade ahead of whatever advantages had been imagined to exist in the old rule, and held that enemy aliens in England under license from the Crown might proceed in the courts. As applied ever since, alien enemies residing in England have been permitted to maintain actions, while those in the land of the enemy were not; and this modern, humane principle has been applied even when the alien was interned as is petitioner here.³ Schaffenius v. Goldberg, (1916) 1 K.B. 284.

The original English common law rule, long ago abandoned there, was, from the beginning, objectionable here. The policy of severity toward alien enemies was clearly impossible for a country whose life blood came from an immigrant stream. In the war of 1812, for example, many persons born in England fought on the American side.⁴ Harshness toward immigrants was inconsistent with that national knowledge, present then as now, of the contributions made in peace and war by the millions of immigrants who have learned to love the country of their adoption more than the country of their birth. Hence in 1813 Chief Justice Kent, in Clarke v. Morey, 10 Johns., N.Y., 69, 72, set the legal pattern which, with sporadic exceptions, has since been followed.⁵ The core of that decision he put in these words: 'A lawful residence implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity.'⁶ Thus the courts aligned their policy with that enjoined upon the President by Congress in 1812 when it directed him to administer the laws controlling aliens in a manner that would be 'consistent with public safety, and according to the dictates of humanity and national hospitality.' 50 U.S.C. § 22, 50 U.S.C.A. § 22.

In asking that the rights of resident aliens be abrogated in their behalf, private litigants in effect seek to stand in the position of government. But only the government, and not the private individual, isvested with the power to protect all the people, including loyal aliens, from possible injury by disloyal aliens. If the public welfare demands that this alien shall not receive compensation for his work or payment for his injuries received in the course of his employment, the government can make the decision without allowing a windfall to those claimants. Even if petitioner were a nonresident enemy alien, it might be more appropriate to release the amount of his claim to the Alien Property Custodian rather than to the claimants; and this is precisely what was done in Birge-Forbes Co. v. Heye, 251 U.S. 317, 323, 40 S.Ct. 160, 161, 64 L.Ed. 286, in which this Court said that the sole objection to giving judgment for an alien enemy 'goes only so far as it would give aid and comfort to the other side.' The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy. This may be taken as the sound principle of the common law today.

It is argued that the petitioner is barred from the courts by the Trading With the Enemy Act, 50 U.S.C.Appendix § 1 et seq., 50 U.S.C.A.Appendix § 1 et seq. The particular clause relied on is Sec. 7: 'Nothing in this Act shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of enemy prior to the end of the war, except as provided in Section 10 hereof (which relates to patents). * * *' Analysis of its terms makes clear that this section was not meant to apply to petitioner, and an examination of its legislative history makes this doubly certain. Section 7 bars from the courts only an 'enemy or ally of enemy.' Section 2 of the Act defines the 'alien enemy' to which the Act applies as those residing within the territory owned or occupied by the enemy; the enemy government or its officers,⁷ or citizens of an enemy nation, wherever residing, as the President by proclamation may include within the definition. Since the President has not under this Act⁸ made any declaration as to enemy aliens, the Act does not bar petitioner from maintaining his suit.

This interpretation, compelled by the words of the Act, is wholly in accord with its general scope, for the Trading With the Enemy Act was never intended, without Presidential proclamation, to affect resident aliens at all. Prior to the passage of the Act, the courts had consistently held that during a state of war, commercial intercourse between our nationals and nonresident alien enemies, unless specifically authorized by Congress and the Executive, was absolutely prohibited, and that contracts made in such intercourse were void and unenforceable.⁹ This strict barrier could be relaxed only by Congressional direction, and therefore the Act was passed with its declared purpose 'to mitigate the rules of law which prohibit all intercourse between the citizens of warring nations, and to permit under careful safeguards and restrictions, certain kinds of business to be carried on.'¹⁰ Thus Congress expressly recognized by the passage of the Act that 'the more enlightened views of the present day as to treat- ment of enemies makes possible certain relaxations in the old law.'¹¹

Since the purpose of the bill was to permit certain relations with non-resident alien enemies, there is no frustration of its purpose in permitting resident aliens to sue in our courts. Statements made on the floor of the House of Representatives by the sponsor of the bill make this interpretation conclusive.¹²

Not only has the President not seen fit to use the authority possessed by him under the Trading With the Enemy Act to exclude resident aliens from the Courts, but his administration has adopted precisely the opposite program. The Attorney General is primarily responsible for the...