Schueller v. Drum, 3151.
| Decision Date | 20 August 1943 |
| Docket Number | No. 3151.,3151. |
| Citation | 51 F. Supp. 383 |
| Parties | SCHUELLER v. DRUM, Lieutenant General. |
| Court | U.S. District Court — Western District of Pennsylvania |
C. Wilfred Conard, George M. Miller, Jr., and Thomas Waltz, all of Philadelphia, Pa., for plaintiff.
Gerald A. Gleeson, U. S. Atty., and J. B. Rettew, Jr., Asst. U. S. Atty., both of Philadelphia, Pa., and Edward Ennis and John Burling, Sp. Assts. to Atty. Gen., for defendant.
This is a petition for a declaratory judgment. The petition, in substance, alleges that the petitioner is a naturalized citizen of the United States, residing in Philadelphia; that on or about December 23, 1942, upon the request of military authorities of the United States she voluntarily appeared before them and testified, in answer to questions propounded to her concerning her membership in various German Clubs; that no charges were presented against her; that she only testified herself, and did not present the testimony of others, nor did she offer any rebuttal of any information which may have been in the possession of the Military Authorities; that on April 26, 1943, Lieutenant General H. A. Drum of the Eastern Defense Command and First Army of the United States issued and had served upon her, allegedly under authority vested in him under Executive Order No. 9066, and pursuant to a determination made in accordance with provisions of Paragraph 9A of Public Proclamation No. 2, Headquarters Eastern Defense Command and First Army, dated September 7, 1942, an individual exclusion order prohibiting her from entering or remaining in the eastern military area, which included the City of Philadelphia, after the expiration of ten days from the date of service, to wit: on and after twelve o'clock midnight Thursday, May 6, 1943; that it further advised her that failure to comply with the same would subject her to forcible expulsion and criminal penalty as provided by Public Law No. 503, approved March 21, 1942, 18 U.S.C.A. 97a; that the petitioner is a loyal citizen of the United States, deriving her citizenship through the naturalization of her husband, and has been a resident of the United States for thirty-two years; that for the past year thereof she has been lawfully conducting a restaurant located in an industrial and commercial area in the City of Philadelphia; that her son, George Schueller, twenty years of age, enlisted in the United States Navy and, being a minor, it was necessary to obtain petitioner's consent to said enlistment, which she readily gave; that she endeavored to ascertain the cause of her exclusion but was unable to obtain any information thereof, being advised that the facts were confidential; that no right of appeal exists from the said exclusion order and that compliance therewith, will result in the taking of her property as well as deprive her of her liberty without due process of law. The petition was later amended to make Lieutenant-General Drum a party defendant, and the prayer of the petition amended to request a declaratory judgment—in substance that the exclusion order was unconstitutional, as being violative of the due process clause. The petition was later amended to allege that the matter in controversy involved more than Three Thousand Dollars ($3,000), exclusive of interest and costs. The answer and amended answer denied that the controversy involved over Three Thousand Dollars ($3,000); that the petitioner failed to allege facts entitling her to declaratory or other relief; denied that the exclusion order was unlawful and averred that the petitioner was excluded because military necessity so required; that by virtue of the authority vested in the President of the United States, the petitioner was ordered excluded upon investigative reports and recommendations and upon the determination, that military necessity and fact required such action and that the exclusion order was made in good faith and without personal bias or prejudice and was not arbitrary, capricious or unreasonable.
A temporary restraining order was granted by the court prohibiting the defendant from taking any action with respect to the petitioner until the matter was legally determined. At the hearing the matter was considered in the nature of a bill in equity, and testimony was taken by both sides showing the whole course of the proceedings.
The government presented certain witnesses to testify to the fact that the petitioner voluntarily appeared in Philadelphia at the request of the Military Authorities and was examined concerning the range of her activities, and especially her membership in certain German Clubs; that she called no witnesses in her behalf, but merely answered the questions propounded to her by army officers, comprising a Hearing Board; that the questions asked of the petitioner were based on investigative reports of the Federal Bureau of Investigation; that the testimony of the petitioner coupled with the investigative reports formed a basis of the Hearing Board's decision to recommend exclusion of the petitioner; that the whole file comprising the investigative reports and testimony of the petitioner was submitted to a Reviewing Officer and some fifteen other Reviewing Officers and Board of Review, including the United States Attorney, a specially designated representative of the Department of Justice, the Chief of Staff and finally the Commanding General of the Eastern Defense Command and First Army, Lieutenant General Drum, who entered the order excluding the petitioner from the eastern defense area. It was further testified that a recommendation not to exclude, at any of the stages heretofore indicated, prevented the case from going forward and resulted either in its termination or further investigation. Testimony was also offered by the Assistant Chief of Staff of the Eastern Defense Command as a military expert on matters of military intelligence. He stated that the Eastern Military area was a sensitive military area consisting of forty percent (40%) of the population of the United States and an even larger percentage of the alien enemy population and of the population of enemy alien ancestry; that over forty percent (40%) of war production and very large majority of war shipments, material and men to active theatres of military operations went through the ports of this military area; that the area could be attacked by surface vessels and submarines as well as by aircraft.
Executive Order No. 9066 of the President of the United States was offered, providing in part as follows:
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