Wilcox v. Emmons

• Decision Date: 29 July 1946
• Docket Number: No. 5189-PH.,5189-PH.
• Citation: 67 F. Supp. 339
• Court: U.S. District Court — Southern District of California
• Parties: WILCOX v. EMMONS et al.

67 F. Supp. 339

WILCOX v. EMMONS et al.

No. 5189-PH.

District Court, S. D. California, Central Division.

July 29, 1946.

A. L. Wirin, of Los Angeles, Cal., for plaintiff.

Charles H. Carr, U. S. Atty., and Mildred Kluckholm, Asst. U. S. Atty., both of Los Angeles, Cal, for defendants.

HALL, District Judge.

This case involves the powers of the Commanding General of the Western Defense Command under Executive Order Feb. 19, 1942, No. 9066, C.F.R. Tit. 3, p. 1092 Cum.Supp; 7 R.F. 1407, and Law 503, 56 Stat. 173, 18 U.S.C.A. § 97a.

On September 6, 1943, the plaintiff was seized in his home in California and ejected by the use of physical and military force from the State of California by a squad of soldiers acting under the orders of the defendant Commanding General of the Western Defense Command, and was thereafter excluded from the State of California for several months, for which he seeks damages in this action.

The ejectment and exclusion were done under an Order directed to the plaintiff, individually, excluding him from Military Areas Numbers 1 and 2 which included among other areas the entire State of California. The defendant, General De Witt, is the only defendant who has appeared. Service has been had upon none of the other defendants, nor have they voluntarily appeared as did General DeWitt.

The defendant, General De Witt, filed a motion for summary judgment under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

Thereafter the plaintiff filed a similar motion.

Both motions were noticed and heard together. All matters have been extensively argued and briefed. While subdivision (c) of Rule 56 permits judgment, if "there is no genuine issue as to any material fact" (except as to the amount of damages); and while subdivision (d) requires an order "specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy," it is nevertheless necessary to ascertain what the material facts are, and what material facts exist without "substantial controversy" or "genuine issue" before either a final or partial judgment can be rendered.

This is especially true where, as here, the matters involved cover not only the record of the previous case, but also involve so many facts which must be judicially noticed.

After the arguments and after briefs were filed, the parties were requested to file statements of their contentions as to what material facts existed without substantial controversy or genuine issue.

From these statements and the evidence, records and files in the case, I now find the following facts to be material and to exist without substantial controversy or genuine issue:

1. On December 8, 1941, Congress declared war upon Japan, 55 Stat. p. 795, 50 U.S.C.A.Appendix, note preceding section 1. Said Statute is now and ever since said date has been in full force and effect.

2. On December 11, 1941, the Western Defense Command was created within the War Department which included the whole of the States of Washington, Oregon, California, Arizona, Montana, Idaho, Utah, and Nevada, and on the same date the defendant herein, Lt. General John L. De Witt, was designated as Commanding General of the Western Defense Command.

3. On December 11, 1941, the Western Defense Command was designated by military authorities as a theater of military operations. Such a theater is defined as an area necessary for military operations and the administration and supply incident to military operation. The zone closest to the enemy which is required for the actual operation of the combatant forces is designated as a combat zone. The rear area of a theater of operations is known as a zone of communication, in which supply and administrative troops function to provide necessary service for the combat forces. The coastal area of the coastal states of Washington, Oregon, and California was a combat zone, and the remaining area of the Western Defense Command was a zone of communication.

4. On December 12, 1941, Executive Order 8972, 3 CFR Cum.Supp. p. 1038, was promulgated and was in full force and effect at all times herein mentioned. It authorized the Army and Navy to establish and maintain military guards and patrols, or by other appropriate means to protect "national-defense material" "national-defense premises" and "national-defense utilities."

5. On February 14, 1942, the defendant as Commanding General of the Western Defense Command made a report and recommendation to the Secretary of War concerning the "Evacuation of Japanese and Other Subversive Persons From The Pacific Coast" (Final Report Japanese Evacuation From The West Coast, by General De Witt, U. S. Government Printing Office), in which he recommended, among other things, (p. 36) that an Executive Order be procured for, "authority to designate military areas in the combat zone in the Western Theater of operations (if necessary to include the entire combat zone), from which, in his discretion, he may exclude all Japanese, all alien enemies, and all other persons suspected for any reason by the administering military authorities of being actual or potential sabotuers sic espionage agents, or fifth columnists," and that such legislation be "implemented by the necessary legislation imposing penalties for violation."

6. February 19, 1942, the President promulgated Executive Order No. 9066 as follows:

"Authorizing the Secretary of War to Prescribe Military Areas

"Whereas, the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1916, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C. Title 50, Sec. 104):

"Now, Therefore, By virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restriction the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the said Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.

"I hereby further authorize and direct the Secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area hereinabove authorized to be designated, including the use of Federal troops and other Federal agencies, with authority to accept assistance of state and local agencies.

"I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities, and services.

"This order shall not be construed as modifying or limiting in any way the authority heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor shall it be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigations of alleged acts of sabotage or the duty and responsibility of the Attorney General and the Department of Justice under the Proclamations of December 7 and 8, 1941, prescribing regulations for the conduct and control of alien enemies, except as such duty and responsibility is superseded by the designation of military areas hereunder."

"Franklin D. Roosevelt

"The White House, February 19, 1942."

7. On February 20, 1942, the Secretary of War sent a letter to the defendant and enclosed a copy of said Executive Order and designated the defendant "as the military commander to carry out the duties and responsibilities imposed in the Western Defence Command, including such changes in the prohibited and restricted areas heretofore designated by the Attorney General as you deem proper to prescribe" and giving him other instructions. (For text of letter see De Witt's Report, pages 25, 26.) On the same day, to wit, February 20, 1940, the Assistant Secretary of War forwarded a memo to the defendant as Commanding General which contained an outline of the suggested method of procedure which might be followed in carrying out an evacuation program. (For full text, see De Witt's Report, pages 27, 28, 29.)

8. Immediately upon the promulgation of Executive Order No. 9066, the War Department, with the approval of the President, requested the Congress to enact legislation to provide sanctions for the enforcement of directives issued under the authority of the Executive Order. A...