Walker v. Chief Quarantine Officer

• Decision Date: 14 August 1943
• Docket Number: Civ. No. 2040.
• Citation: 69 F. Supp. 980
• Parties: WALKER v. CHIEF QUARANTINE OFFICER.
• Court: U.S. District Court — Panama Canal Zone

69 F. Supp. 980

WALKER v. CHIEF QUARANTINE OFFICER.

Civ. No. 2040.

District Court, D. Canal Zone Div. Balboa.

August 14, 1943.

Harry H. Allen, Jr., of Ancan, Canal Zone, for plaintiff.

W. J. Sheridan, Jr., Acting U. S. Dist. Atty., of Ancan, Canal Zone, for defendant.

GARDNER, District Judge.

Plaintiff Jesse Dee Walker filed his petition in this court on August 6, 1943, against the Chief Quarantine Officer of The Panama Canal, in which he states that the petitioner is a citizen of the United States of America and that the defendant is an officer of the United States of America who is authorized and directed by law to issue to citizens of the United States of America those necessary papers and documents for said citizens to leave the Canal Zone and to return to the United States of America, commonly known and styled as "clearance." Further, that the plaintiff, as a citizen of the United States, is entitled to return to the country of his birth and his citizenship; that on the 6th day of August, 1943, the plaintiff presented himself in person to the defendant and produced his passport and other documents supporting his claim to American citizenship; that his passport was found by the defendant to be in proper order and form; that the defendant then and there wrongfully refused to issue the necessary documents for the petitioner to leave the Canal Zone for the United States of America, in violation of the duty imposed upon him by his office, and that his refusal was wrongful and unlawful and precluded the petitioner from departing from the Canal Zone and returning to the United States of America.

The petition prayed that an alternative writ of mandamus be issued, directed to the defendant and commanding him either to issue the necessary documents which would permit the petitioner to leave the Canal Zone and to enter the United States or to appear before this court upon a day certain to show cause, if any he had, why he should not do so.

Upon the filing of the petition, the court notified the District Attorney's Office and, pursuant to agreement, the alternative writ of mandamus was issued, and the defendant was ordered to appear before the court at the hour of 9 o'clock on the morning of the 10th day of August, 1943, to show cause, if any he had, why he had not issued the necessary papers as set forth in the petition of the petitioner.

The answer is practically an admission of the material allegations of the petition, but there is denial and affirmative pleas substantially to the effect that petitioner was not entitled to return to the country of his birth and citizenship by reason of a contract of employment entered into between the petitioner and an agent of the War Department on June 2, 1943, and that ever since said date the petitioner had been an employee of the War Department serving with the Army in the field of the Canal Zone and as such was subject to the orders of the military authorities in the Canal Zone and was not free to leave such employment and return to the United States until released by said military authorities, and that said military authorities had not released said petitioner from his contract of employment. The answer further alleged that the defendant was acting under the orders and direction of the Governor of The Panama Canal not to issue clearances to depart from the Canal Zone to employees of the War Department unless employee submitted a letter or memorandum of termination of employment from his employer, and the petitioner failed and refused to submit such letter or memorandum of termination of employment from his employer, and defendant Chief Quarantine Officer was subject to the orders and control of the Governor of The Panama Canal; that the Governor of The Panama Canal, by virtue of Order No. 8232 of the President of the United States issued on September 5, 1939, under authority of Section 8, Title 2, Canal Zone Code, was subject to the orders and direction of the officer of the Army commanding United States troops stationed in the Canal Zone and that the officer of the Army commanding United States troops in the Canal Zone had determined that the military situation at present existing required that the petitioner Jesse Dee Walker be held to his contract of employment until such time as he be called for induction by his local Selective Service Board, after which time, on proper showing, he might be returned to the United States for induction into the armed forces; further, that the officer of the Army commanding United States troops in the Canal Zone had directed the Governor of The Panama Canal not to issue a clearance to depart from the Canal Zone to the petitioner Jesse Dee Walker and that, pursuant to that direction, the defendant had refused to issue any clearance to depart from the Canal Zone to the said petitioner.

It appears to the court from the pleadings, exhibits, proof, and arguments heard herein that there is but little controversy as to the facts of this case, the premises being as follows:

That the petitioner Jesse Dee Walker is 35 years of age, is married, and is a citizen of the United States of America;

His place of residence is Bixby, Tulsa County, Oklahoma, where he had an electrical business and also owns considerable property;

That, pursuant to the Selective Service Act, 50 U.S.C.A.Appendix, § 301 et seq., he was duly registered and placed in Class III-a prior to his departure from the United States;

That he secured from his local Selective Service Board an authorization to depart from the United States for the purpose of accepting employment in the Panama Canal Zone, with permission to remain absent for six months;

That on the 2d day of June, 1943, at St. Louis, Missouri, he executed an indefinite employment contract, Form No. 2, with the Division Engineer, Engineer Service Caribbean Defense Command, Panama Division, an agency of the Government of the United States of America, said contract providing that the employer was desirous of securing the labor and services of the employee upon construction projects of the Government of the United States in the Caribbean Defense Command and adjacent countries and outlying places, and that the employee was desirous of proceeding to the Canal Zone for the purpose of performing labor and rendering services upon the aforesaid projects. It was agreed that the employer would transport the employee from St. Louis, Missouri, to the Canal Zone, and that the employee would serve his employer efficiently and faithfully upon the aforesaid projects, and the type of work and the remuneration for same was stipulated. It was also provided that if the employer, after a fair trial of the employee, determined that the employee was not qualified to perform the duties of the position, or if the conduct of the employee was not satisfactory, the employer reserved the right to terminate the services of the employee with prejudice and to send him back to the United States, and, if the termination of the employment was caused by the misconduct or misrepresentation on the part of the employee, said employee must bear the expenses incidental to his return to the United States.

That pursuant to the terms of the contract, the petitioner proceeded to the Canal Zone and engaged in the work as provided by the contract;

That the petitioner recently received notice through the Induction Officer, Panama Canal Department, Quarry Heights, C. Z., to appear for physical examination to determine his fitness for induction into the armed forces of the United States, and he reported and was examined on August 4, 1943;

That, apprehending his draft status had been changed and that he would be called into service in the near future, he conversed by telephone with the chairman of his local Selective Service Board in Oklahoma and received the information from him that the petitioner would be called for induction about the 28th of August, 1943;

That the petitioner, being desirous of attending to some business affairs in the United States before being inducted into the Army, attempted to terminate his services with the Division Engineer by resignation but was advised that the Division Engineer would not accept his resignation and would not release him from his employment;

That the petitioner secured a passport and, so far as this record shows, did everything that was required, and he then applied to the defendant Chief Quarantine Officer of the Panama Canal for a permit, commonly called a "clearance," to leave the Canal Zone for the United States;

That the defendant refused to furnish petitioner with said clearance, for the reasons only set forth in his answer herein;

That the petitioner has violated no law of the Selective Service Act, nor has he violated any rules or regulations made pursuant thereto, nor of his local Selective Service Board.

There has been no contention made to the court that when the petitioner registered under the Selective Service Act that this interfered with his liberty in any way, except in accordance with the law and regulations thereunder; viz., that he should keep his local board informed as to his occupation and address and be subject to its orders and call; neither has there been any contention that by reason of the fact that he was registered as required by the Selective Service Act that the Division Engineer or the United States Army acquired any dominion over him. It would thus seem that the fact as to whether the petitioner was or was not registered has nothing to do with the proper decision of this case. It certainly cannot be contended that simply because the petitioner has registered under the provisions of the Selective Service Act that by so doing he gave to the Army or the Division Engineer or any other governmental agency any right to restrain his liberty that it otherwise would not have had.

The Constitution of the United States of America, Amend. 5, provides that no person shall be deprived...