1. Section 266 of the Judicial Code (now 28 U.S.C. §§ 2281,
1253, etc.), which required that a suit to enjoin state officers
from enforcing a state statute on the ground of unconstitutionality
be heard and determined by a district court of three judges, and
which authorized a direct appeal to this Court from a final decree
in such suit,
held not applicable to the Territory of
Hawaii. Pp.
336 U. S.
374-380.
2. A final judgment of the United States District Court for
Hawaii in a suit heard and determined by three judges, although not
appealable directly to this Court because of the inapplicability of
Judicial Code § 266 (now 28 U.S.C. § 1253), was nevertheless
reviewable in the Court of Appeals, and could be considered here on
certiorari to that court. Pp.
336 U. S.
380-381.
3. A final judgment of the United States District Court for
Hawaii, erroneously constituted of three judges under Judicial Code
§ 266 (now 28 U.S.C. § 2281), enjoined territorial officers from
enforcing an Act of the Territory on the ground of
unconstitutionality. A direct appeal was erroneously taken to this
Court; an appeal was also taken to the Court of Appeals, and this
Court was petitioned to review the case in the Court of Appeals by
certiorari before judgment.
Held: as the record, arguments and briefs here and the
opinions of the District Court fully present the case decided by
the District Court, and to avoid further futile proceedings, this
Court grants certiorari to review the case in the Court of Appeals
before judgment. Pp.
336 U. S.
370-371.
Page 336 U. S. 369
4. Claiming that it was invalid under the Federal Constitution,
certain Chinese School Associations, a Chinese school, and a
teacher of Chinese in Chinese language schools sued in the United
States District Court for Hawaii to enjoin officers of the
Territory from enforcing an Act of the Territory which forbids the
teaching of foreign languages to children in certain circumstances.
The sole sanction for its enforcement was by injunction, in a suit
for which the defense of unconstitutionality would be available.
The Act had not been construed by the Hawaiian courts.
Held: assuming the existence of federal and equitable
jurisdiction, the District Court, as a matter of its discretion,
should have refused to grant the injunction. Pp.
336 U. S.
381-384.
5. Where equitable interference with state and territorial acts
is sought in federal courts, judicial consideration of acts of
importance primarily to the people of the state or territory
should, as a matter of discretion, be left by the federal courts to
the courts of the legislating authority, unless exceptional
circumstances command a different course. P.
336 U. S.
383-384.
74 F.
Supp. 852, reversed.
Respondents sued in the United States District Court for the
District of Hawaii to enjoin officers of the Territory from
enforcing an Act of the Territory challenged as invalid under the
Federal Constitution. The suit was heard and determined by a court
of three judges, which granted the injunction.
74 F. Supp.
852. The defendants took a direct appeal to this Court (No. 52)
and an appeal to the Court of Appeals. They also petitioned this
Court for review of the case in the Court of Appeals by certiorari
before judgment (No. 474). In No. 52, the appeal is dismissed; in
No. 474, certiorari is granted, the judgment is reversed, and the
cause is remanded to the District Court with directions to dismiss
the complaint. P.
336 U. S.
384.
Page 336 U. S. 370
MR. JUSTICE REED delivered the opinion of the Court.
The appeal in No. 52,
Stainback, Governor of the Territory
of Hawaii, et al. v. Mo Hock Ke Lok Po, An Eleemosynary
Corporation, et al., and the writ of certiorari in No. 474, a
case with the same short title, seek review of a judgment of the
District Court of the United States for the District of Hawaii.
This judgment was passed by a special three-judge court that was
called pursuant to Judicial Code § 266, and, by that section's
provision, was brought directly here on May 7, 1948, in case No.
52. To guard against a frustration of review by this Court's
refusal to accept jurisdiction, a timely appeal by the petitioners
here in No. 52 has been taken by them in No. 474 to the Court of
Appeals for the Ninth Circuit. No judgment on that appeal has been
entered by the Court of Appeals, and appellants there, the Governor
of Hawaii et al., petitioned here on December 21, 1948, for
Page 336 U. S. 371
the allowance of a writ of certiorari under 28 U.S.C. § 1254(1).
[
Footnote 1]
A jurisdictional question as to whether Judicial Code § 266 was
applicable in the Territory of Hawaii arises in No. 52. It was
postponed by order of this Court on June 1, 1948, to the hearing of
that case on the merits. This Court postponed action on the
petition for certiorari in No. 474 until the hearing of No. 52 on
the merits. As the record, arguments, and briefs here and the
opinions below fully present the case decided by the District
Court, to avoid further futile proceedings, we now grant the
petition for the writ of certiorari to the Court of Appeals before
its decree and proceed in No. 474 to a review of the judgment of
the District Court of Hawaii. The opinions appeal in
74 F.
Supp. 852,
Mo Hock Ke Lok Po v. Stainback.
Respondents here were plaintiffs in the trial court. They are
Chinese School Associations, a Chinese school, all giving
instruction in Chinese, and a teacher of Chinese in Chinese
language schools. After December 7, 1941, these schools closed, and
have not reopened. Prior to that date, they had more than 2,000
pupils, several hundred of whom were in the first and second grade,
and numerous teachers. Under Judicial Code § 266, they sought an
injunction against officers of the Territory of Hawaii charged by
law with the administration of an Act of the Territory "Regulating
the Teaching of Foreign Languages to Children," [
Footnote 2] from enforcing it in any
particular against
Page 336 U. S. 372
the teaching of foreign languages to the respondents'
pupils.
The Act was grounded on a legislative finding
"that the study and persistent use of foreign languages by
children of average intelligence in their early and formative years
definitely detract from their ability properly to understand and
assimilate their normal studies in the English language."
Revised Laws of Hawaii 1945, § 1871. "School" was defined as any
teaching regularly of two or more persons in a group. [
Footnote 3] Requirements for pupils and
teachers in foreign language schools were set out. [
Footnote 4] Visitation of the foreign
language schools by appropriate officials for enforcement purposes
was authorized. § 1875. The only sanction for enforcement is by
injunction. [
Footnote 5]
Page 336 U. S. 373
This lack of coercion by fine or imprisonment, and the
limitation of enforcement to injunction, are important factors in
our conclusion upon No. 474.
The complaint alleged that, in violation of the Fifth Amendment,
the Act deprived plaintiff schools of the right to manage their
property by contracting with instructors and parents for the
teaching of Chinese, and the plaintiff teacher of Chinese of his
right to follow his occupation. [
Footnote 6]
See Farrington v. Tokushige,
273 U. S. 284,
273 U. S. 299. The
judgment of the special district court granted a sweeping permanent
injunction against enforcement of the Hawaiian Act. As our
conclusions are based solely upon procedural issues, any further
discussion of the facts or of the law applicable to the merits is
not appropriate.
Page 336 U. S. 374
The complaint asked for and obtained a three-judge court under
the provisions of the Judicial Code § 266. [
Footnote 7] The minute entries of proceedings and trial
and the opinion re applicability of § 266, Judicial Code, 74
F.Supp. at
Page 336 U. S. 375
858, show suggestions that a special district court under
Judicial Code § 266 cannot be called for Hawaii. The statement of
jurisdiction laid bare the problem with commendable frankness. It
lies at the threshold of any consideration of this appeal.
[
Footnote 8]
Within the present decade, this Court summarized, in
Phillips v. United States, 312 U.
S. 246, the purpose and effect of § 266, and extracted
from its history and the precedents for the section's application a
congressional requirement of strict construction to protect our
appellate docket while assuring the states that exceptionally
careful judicial consideration would guard them against all
assaults, through federal courts, against their legislative
statutes or administrative board orders by applications for
injunction when those assaults were based on the Federal
Constitution. Pp.
312 U. S.
250-251. While we take judicial notice that, since the
Phillips case, air carriage has brought Hawaii closer to
the continent, [
Footnote 9] the
interference with the normal adjudicatory and appellate processes
of the federal judicial system and our docket persists. The
power
Page 336 U. S. 376
to call a panel of judges under § 266 in Hawaii is to be
examined in the light of the
Phillips case.
Hawaii is still a territory, but a territory in which the
Constitution and laws of the United States generally are
applicable. 31 Stat. 141, § 5, as amended, 48 U.S.C. § 495;
Duncan v. Kahanamoku, 327 U. S. 304,
327 U. S. 317.
Not only its federal courts, but also its territorial courts, are,
of course, subject to congressional legislation. 48 U.S.C. § 631,
et seq. The Organic Act for Hawaii, § 86, [
Footnote 10] provided in 1900:
"That there shall be established in said Territory a district
court to consist of one judge. . . . Said court shall have, in
addition to the ordinary jurisdiction of district courts of the
United States, jurisdiction of all cases cognizable in a circuit
court of the United States, and shall proceed therein in the same
manner as a circuit court. . . ."
31 Stat. 158.
When incorporated into the Code, this Court was given "the
jurisdiction of district courts of the United States, and shall
proceed therein in the same manner as a district court." 48 U.S.C.
§ 642. It now has that jurisdiction. [
Footnote 11] The only change that could be considered
significant is the more definite integration of the district court
for Hawaii into the federal judicial system by definition.
[
Footnote 12] As
jurisdiction of this Court on appeal depends upon whether or not a
special three-judge court was properly called, [
Footnote 13] and not upon the power of this
Court to review under
Page 336 U. S. 377
Judicial Code § 266, we need not analyze the method of review of
the judgments of the District Court of Hawaii. [
Footnote 14]
Our issue is narrowed to the inquiry of whether Congress
intended that Judicial Code § 266 should apply in the Territory of
Hawaii under circumstances that would require its application in a
similar suit in a state. Congress, in discussing an amendment to
the Mann-Elkins Act, which amendment evolved into this section,
considered the geographical difficulties inherent in the
requirement of a three-judge court and the burden thus place on the
functioning of the federal judicial system, but decided that such
considerations were outweighed by the desirability of having the
constitutionality of a state statute passed on by a court
comparable to the court of last resort of the state. 45 Cong.Rec.
7253-57. It is to be noted that nowhere in § 266 is mention made of
territories, nor as far as has been called to our attention in the
congressional debates and reports relating to this section and its
amendments.
While, of course, great respect is to be paid to the enactments
of a territorial legislature by all courts as it is to the
adjudications of territorial courts, [
Footnote 15] the predominant reason for the enactment of
Judicial Code § 266 does not exist as respects territories. This
reason was a congressional
Page 336 U. S. 378
purpose to avoid unnecessary interference with the laws of a
sovereign state. [
Footnote
16] In our dual system of government, the position of the state
as sovereign over matters not ruled by the Constitution requires a
deference to state legislative action beyond that required for the
laws of a territory. [
Footnote
17] A territory is subject to congressional regulation.
[
Footnote 18]
When the long established rule of strict construction of
Judicial Code § 266 and that of protection of the docket of this
Court is also considered in conjunction with the necessary
interference with the normal operations of the federal judicial
system by the establishment of the three-judge requirement in
Hawaii, we are not persuaded that Congress intended § 266 to cover
Hawaii.
See 45 Cong.Rec. 7253-57. Despite its generality,
the words of § 266 have been strictly construed, so that "statute
of a State" does not include ordinances; "officer of such State"
means one with authority to execute or administer a statewide
policy. [
Footnote 19]
It is not merely the absence of the word "territory" from § 266
that leads us to this conclusion. We recognize that, in some
situations, the word "state" includes territory.
Andres v.
United States, 333 U. S. 740. In
that
Page 336 U. S. 379
case, we thought the purpose of Congress would be frustrated by
a holding that the word "state" in a federal statute providing for
execution of a criminal in "the manner prescribed by the laws of
the State within which the sentence is imposed" did not include
"Territory." There, we held state included territory. [
Footnote 20] Here, the purpose of
the statute to protect state sovereignty is not furthered by an
interpretation of state to include territory.
A former opinion of this Court lends strength of this
interpretation. In
Farrington v. T. Tokushige,
273 U. S. 284,
decided in the United States District Court of Hawaii on July 21,
1925, a temporary injunction forbidding territorial officers from
enforcing a territorial statute somewhat similar to the one here
involved was granted by a single district judge on the ground of
the invalidity of the territorial statute under the Federal
Constitution. 11 F.2d 710. The Circuit Court of Appeals for the
Ninth Circuit affirmed on the same ground, and so did this Court on
certiorari. No question was raised in any court as to the
applicability of the requirement of § 266 that no such injunction
should be granted against a state without three judges. If § 266
applied to Hawaii, the interlocutory order of injunction was
entered without jurisdiction. The Court of Appeals and this Court
were without jurisdiction over the appeal. While it is sometimes
said that action, where the power to act is unquestioned, can
hardly be said to be a precedent for a future case, [
Footnote 21] where, as here, the
responsibility was on the courts to see that the three-judge
Page 336 U. S. 380
judge rule was followed, we think it significant that no one
sought to apply § 266 to Hawaii. [
Footnote 22]
We hold that Judicial Code § 266 is not applicable to Hawaii,
that we are without jurisdiction in case No. 52, and that the
appeal therein must be dismissed.
We turn now to No. 474, here on writ of certiorari to the Court
of Appeals of the Ninth Circuit before the entry of a decree in
that court. 28 U.S.C. § 2101(d). What we have said concerning the
final judgment in the District Court of Hawaii establishes that the
judgment was entered by a court improperly constituted under
Judicial Code § 266. Nevertheless this order is subject
Page 336 U. S. 381
to review in the Court of Appeals. [
Footnote 23] It is the final order of a district
court, although erroneously heard by three judges instead of one
and not appealable directly here because not covered by § 266. But,
as a final order of the District Court, it is reviewable in the
Court of Appeals, [
Footnote
24] and can be considered here.
Another procedural matter leads us to refuse consideration of
case No. 474 on the merits. Respondents, in the United States
District Court, sought and obtained injunctive relief from the
enforcement of a territorial law by a proceeding under 28 U.S.C. §
41(1) on the plea that the law violates the due process clause of
the Fifth Amendment because respondents, by the law, were deprived
of liberty and of property. [
Footnote 25] The allegations of irreparable injury
consist of an assertion that it will be necessary to incur a
comparatively large liability for building repairs and employment
of teachers on the part of the respondent schools before the Act
will be violated, sums that will be lost if the Act can be enforced
constitutionally. The teacher claims to suffer irreparable injury
because he cannot follow his occupation. As the District Court
found irreparable injury to all respondents
Page 336 U. S. 382
in the jurisdictional amount, we assume there is both federal
and equitable jurisdiction. [
Footnote 26] Furthermore, there is no problem as to
whether or not there is an adequate legal remedy in the federal
courts. [
Footnote 27] There
is none. The sole sanction,
see note 5 supra, is by the institution of
proceedings in equity in territorial courts whereby the
extraordinary remedies of prohibitory and mandatory injunctions are
utilized to stop violations of the Act. The
Page 336 U. S. 383
respondents here, if such proceedings were brought, would have
such defenses as the laws of the territory allow, including of
course, defenses based upon the present issues of
unconstitutionality under the Federal Constitution.
We are of the view, however, that the United States District
Court for Hawaii, as a matter of its discretion, should have
refused to grant this injunction. The complaint called for broad
consideration of the application of the Act to foreign language
schools and teachers. It had not been construed by the Hawaiian
courts. Judge McLaughlin pointed out in his conclusions of law on a
motion for preliminary injunction before the request for a
three-judge court that this law
". . . carries no criminal penalties for infractions.
Enforcement is in equity in the circuit courts of the Territory.
Plaintiffs have no reason to fear a court of equity, and there is
every reason to believe that their constitutional rights would be
fully protected in the equity courts of the Territory, and that an
appeal, if need be, eventually could be had to the United States
Supreme Court."
The statement applies as well to the final injunction. Entirely
aside from the question of the propriety of an injunction in any
court, [
Footnote 28]
territorial like state courts are the natural sources for the
interpretation and application of the acts of their legislatures
and equally of the propriety of interference by injunction.
[
Footnote 29] We think that,
where equitable interference with state and territorial acts is
sought in federal courts, judicial consideration of acts of
importance primarily to the people of a state
Page 336 U. S. 384
or territory should, as a matter of discretion, be left by the
federal courts to the courts of the legislating authority unless
exceptional circumstances command a different course. We find no
such circumstances in this case.
The appeal in No. 52 is dismissed.
The judgment in No. 474 is reversed, and the cause remanded to
the District Court with directions to dismiss the complaint.
* Together with No. 474,
Stainback, Governor of the
Territory of Hawaii, et al. v. Mo Hock Ke Lok Po, an Eleemosynary
Corporation, et al., on petition for writ of certiorari to the
United States Court of Appeals for the Ninth Circuit.
[
Footnote 1]
"§ 1254. Courts of appeals; certiorari; appeal; certified
questions."
"Cases in the courts of appeals may be reviewed by the Supreme
Court by the following methods: "
"(1) By writ of certiorari granted upon the petition of any
party to any civil or criminal case, before or after rendition of
judgment or decree. . . ."
[
Footnote 2]
Session Laws of Hawaii 1943, Act 104, Revised Laws of Hawaii
1945, c. 31.
[
Footnote 3]
"SEC. 1872. Definitions. As used in this chapter: "
"'School' means any person, firm, group of persons,
unincorporated association, corporation, establishment, or
institution, which teaches, with or without fees, compensation, or
other charges therefor, any language other than the English
language, as a course of study, to two or more persons as a group,
as a regular and customary practice."
[
Footnote 4]
"No child shall be taught a foreign language in any school
unless he shall comply with one of the following requirements: (a)
that he shall have passed the fourth grade in public school or its
equivalent, and shall pass from time to time in each succeeding
grade a standard test in English composition and reading conducted
by or under the direction of the department of public instruction
attaining a score not lower than normal for his grade; or (b) that
he shall have passed the eighth grade in public school or its
equivalent; or (c) that he shall have attained the age of fifteen
years."
R.L.Haw.1945, § 1873.
"No school shall permit the teaching of any foreign language to
any child under the age of fifteen unless the teacher shall have
been examined and certified by a board of examiners of three
persons appointed by the commissioners of public instruction to be
reasonably well versed in the usage and idiom of both the English
language and the foreign language to be taught by such teacher. . .
."
R.L.Haw.1945, § 1874.
[
Footnote 5]
"SEC. 1876. Injunctive enforcement. In the event any school or
any person shall be found to be violating, or failing to comply
with any of the requirements of, this chapter, or there shall be
reasonable cause to believe that such school or person is
violating, or failing to comply with the requirements of, this
chapter, the attorney general, at his own instance or at the
request of the department of public instruction, shall institute
appropriate proceedings in equity in the circuit in which the
violation occurs to enjoin the performance of any acts or practices
forbidden by this chapter, or to require such school or person to
comply with the requirements of this chapter. Jurisdiction to hear
and dispose of all actions under this section is hereby conferred
upon each circuit judge, and each such judge shall have power to
issue such orders and decrees, by way of injunction, mandatory
injunction or otherwise, as may be appropriate to enforce the
provisions of this chapter. In the event any respondent or
respondents shall fail or refuse to comply with any such order or
decree, the court, in addition to any other powers hereby granted,
shall have power to enjoin the operation and conduct of such school
until and unless this chapter is complied with or satisfactory
assurance is given that this chapter will be complied with. The
county attorney of each county shall, at the request of the
attorney general, conduct such proceeding in behalf of the
Territory. All such suits shall be brought in the name of the
Territory by the attorney general."
R.L.Haw.1945.
[
Footnote 6]
There was a further allegation of a denial to plaintiffs of
rights under 8 U.S.C. §§ 41, 42, 43. This was not considered by the
District Court or relied upon is brief or argument here. We do not
consider it.
[
Footnote 7]
28 U.S.C. § 380 (
see redistribution without change of
importance in this case, Act of June 25, 1948, Pub.Law No. 773, §§
1253, 2101, 2281, 2284):
"No interlocutory injunction suspending or restraining the
enforcement, operation, or execution of any statute of a State by
restraining the action of any officer of such State in the
enforcement or execution of such statute, . . . shall be issued or
granted . . . unless the application for the same shall be
presented to a justice of the Supreme Court of the United States,
or to a circuit or district judge, and shall be heard and
determined by three judges. . . . Whenever such application as
aforesaid is presented to a justice of the Supreme Court, or to a
judge, he shall immediately call to his assistance to hear and
determine the application two other judges. . . . An appeal may be
taken direct to the Supreme Court of the United States from the
order granting or denying, after notice and hearing, an
interlocutory injunction in such case. . . . The requirement
respecting the presence of three judges shall also apply to the
final hearing in such suit in the district court, and a direct
appeal to the Supreme Court may be taken from a final decree
granting or denying a permanent injunction in such suit."
An interlocutory injunction was sought in the complaint, filed
June 26, 1947, but the record presented to us does not show that
one was issued, although the final injunction was not issued until
February 11, 1948. An opinion on the applicability of Judicial Code
§ 266, filed October 22, 1947, says that
"All pertinent adjective prerequisites specified by the Supreme
Court in
Ayrshire Collieries Corporation v. United States,
331 U. S.
132, and in
Farrington v. T. Tokushige, supra,
necessary to make operative three judge participation in the
instant suit have occurred. An interlocutory injunction has been
sought and passed to a hearing in the District Court at Honolulu,
and a substantial federal question of transcending limitations of
the 5th Amendment to the Constitution has been sufficiently alleged
in the Amended Complaint."
74 F. Supp. 858, 859.
Despite appellants' suggestion that the application for an
interlocutory injunction was not pressed, we think that, in view of
this language, it would be hypercritical for us to dismiss this
appeal for failure of the record to show more definitely that the
prayer for an interlocutory judgment was pressed.
But see Healy
v. Ratta, 289 U.S. 701, where the correspondence file in this
Court shows receipt of a supplemental record containing a formal
waiver of prayer for temporary relief.
Ayrshire Collieries
Corp. v. United States, supra, at
331 U. S. 140;
Stratton v. St. Louis S.W. R. Co., 282 U. S.
10.
Compare 28 U.S.C. § 1253 and 28 U.S.C.
(1946 ed., Supp. II) pp. 1444, 1453, showing repeal and
redistribution of Judicial Code § 266. We therefore assume that the
quoted statement from the District Court opinion establishes that
the request for an interlocutory injunction was pressed on that
court.
[
Footnote 8]
Stratton v. St. Louis S.W. R. Co., 282 U. S.
10,
282 U. S. 13;
Phillips v. United States, 312 U.
S. 246,
312 U. S.
248.
[
Footnote 9]
Air travel to Hawaii is recognized by the Administrative Office
of the United States Courts as a necessary travel expense for
judges under 28 U.S.C. § 604(7).
[
Footnote 10]
31 Stat. 158.
[
Footnote 11]
28 U.S.C. §§ 451, 91, 1331-1359;
see 28 U.S.C. § 41;
sec. 8, Act of June 25, 1948, 62 Stat. 986. Note arrangement for
Alaska
id. sec. 9.
[
Footnote 12]
See Revisers Notes to §§ 1291, 1292.
Cf. Mookini v.
United States, 303 U. S. 201.
[
Footnote 13]
Rorick v. Board of Commissioners of Everglades Drainage
District, 307 U. S. 208,
307 U. S.
212.
[
Footnote 14]
Review of the judgments of the district court for Hawaii was
allowed in the Organic Act by § 86 to the Ninth Judicial Circuit in
the same manner as from the then circuit courts to the circuit
courts of appeals. This was adjusted to conform to the elimination
of the circuit courts by Judicial Code § 128 as amended.
See 48 U.S.C. § 64. Since this appeal was taken, the
United States Code, Title 28, §§ 1291, 1294, has become effective.
Under Judicial Code § 266, this Court had direct review, Judicial
Code §§ 128, 238, at the time of appeal and still has. 28 U.S.C. §
1253, as revised effective September 1, 1948.
[
Footnote 15]
Waialua Co. v. Christian, 305 U. S.
91,
305 U. S. 108;
De Castro v. Board of Comm'rs, 322 U.
S. 451,
322 U. S.
455.
[
Footnote 16]
Ex parte Collins, 277 U. S. 565,
277 U. S.
567-569.
[
Footnote 17]
Although Judicial Code § 266 originated in 1910, 36 Stat. 539,
557, it was not until 1937 that the requirement of a three-judge
district court to hear applications for injunctions against the
enforcement of Acts of Congress was enacted. 50 Stat. 752.
[
Footnote 18]
Const., Art. IV, § 3, cl. 2.
[
Footnote 19]
To the cases on strict construction of § 266 cited in
Phillips v. United States, supra, add
City of
Cleveland v. United States, 323 U. S. 329;
Spielman Motor Sales Co. v. Dodge, 295 U. S.
89;
Public Nat. Bank of New York v. Keating, 29
F.2d 621;
City of Des Moines v. Des Moines Gas Co., 264 F.
506;
Calhoun v. City of Seattle, 215 F. 226;
Cumberland Telephone & Telegraph Co. v. City of
Memphis, 198 F. 955.
[
Footnote 20]
See also Talbott v. Board of Comm'rs of Silver Bow
County, 139 U. S. 438;
Wynne v. United States, 217 U. S. 234,
217 U. S. 242;
Yeung v. Territory of Hawaii, 132 F.2d 374, 377.
[
Footnote 21]
United States v.
More, 3 Cranch 159,
7 U. S. 172;
Snow v. United States, 118 U. S. 346,
118 U. S. 354;
Cross v. Burke, 146 U. S. 82,
146 U. S. 87;
Louisville Trust Co. v. Knott, 191 U.
S. 225,
191 U. S. 236;
Arant v. Lane, 245 U. S. 166,
245 U. S. 170.
[
Footnote 22]
Stratton v. St. Louis S.W. R. Co., 282 U. S.
10,
282 U. S. 13.
See also Benedicto v. West India & Panama Telegraph
Co., 256 F. 417.
Compare Porto Rico Ry., Light & Power
Co. v. Colom, 106 F.2d 345, 354-355.
The District Court thought that any question by reason of the
Tokushige case as to differences between that court and
the United States District Courts of the States, so far as their
powers under § 266 is concerned, had been
"expressly and clearly removed by subsequent specific
Congressional legislation. Title 48, Section 646, Federal Rules of
Civil Procedure, rules 1, 65(e)."
74 F. Supp. at 860.
"These rules do not modify . . . the act of August 24, 1937, c.
754, § 3, relating to actions to enjoin the enforcement of acts of
Congress."
Section 3 of c. 754, 50 Stat. 751, is the section that provides
for a special district court where an injunction is sought
restraining the enforcement, operation, or execution of the setting
aside of any act of Congress on the ground that it is repugnant to
the Constitution of the United States. In this present proceeding,
we are not dealing with any act of Congress, but with an act of the
territorial legislature of the Hawaiian Islands.
[
Footnote 23]
Healy v. Ratta, 289 U.S. 701;
292 U. S. 292 U.S.
263-264; 67 F.2d 554, 556;
Wilentz v. Sovereign Camp,
306 U. S. 573,
306 U. S. 582;
Public Service Commission v. Brashear Freight Lines,
312 U. S. 621,
312 U. S.
626.
[
Footnote 24]
28 U.S.C. § 225(a), now 28 U.S.C. § 1291.
See Gully v.
Interstate Nat. Gas Co., 292 U. S. 16,
292 U. S. 19;
Oklahoma Gas & Electric Co. v. Oklahoma Packing Co.,
292 U. S. 386,
292 U.S. 392;
Rorick v.
Board of Commissioners, 307 U. S. 208,
307 U. S. 213.
Cf. Jameson & Co. v. Morgenthau, 307 U.
S. 171,
307 U. S. 174;
International Ladies' Garment Workers' Union v. Donnelly
Garment Co., 304 U. S. 243,
304 U. S.
251-252.
[
Footnote 25]
As indicated above,
note 6
respondents also relied upon a denial of equal rights under 8
U.S.C. §§ 41, 42 and 43. No more definite allegation appears. The
hearing developed nothing to indicate any purpose or action of
discrimination against any race or group in the law or its
administration. The Act covered all foreign languages. We therefore
confine ourselves to the due process issue.
See Snowden v.
Hughes, 321 U. S. 1.
[
Footnote 26]
Notwithstanding the fusion of law and equity by the Rules of
Civil Procedure, the substantive principles of Courts of Chancery
remain unaffected. Rules 1 and 2; 48 Stat. 1064, §§ 1 and 2 [note
48 U.S.C.1946 ed., § 646; repealed by Act of June 25, 1948, 62
Stat. 992;
cf. 28 U.S.C. § 451];
Abbe v. New York,
N.H. & H. R. Co., 171 F.2d 387, 388;
Bereslavsky v.
Caffey, 161 F.2d 499;
Bereslavsky v. Kloeb, 162 F.2d
862;
Byram v. Vaughn, 68 F. Supp.
981, 984.
Compare Sibbach v. Wilson & Co.,
312 U. S. 1,
312 U. S. 9-10.
See Hillsborough v. Cromwell, 326 U.
S. 620,
326 U. S.
622.
Atlas Life Ins. Co. v. W. I. Southern, Inc.,
306 U. S. 563,
306 U. S.
568:
"Section 11 of the Judiciary Act of 1789, 1 Stat. 78, provided
that the circuit courts should have 'cognizance . . . of all suits
of a civil nature at common law or in equity' in cases
appropriately brought in those courts. This provision is
perpetuated in § 24(1) of the Judicial Code, 28 U.S.C. § 41(1) [now
§ 1331
et seq.], which declares that the district courts
shall have jurisdiction of such suits. The 'jurisdiction' thus
conferred on the federal courts to entertain suits in equity is an
authority to administer in equity suits the principles of the
system of judicial remedies which had been devised and was being
administered by the English Court of Chancery at the time of the
separation of the two countries. . . . This clause of the statute
does not define the jurisdiction of the district courts as federal
courts, in the sense of their power or authority to hear and
decide, but prescribes the body of doctrine which is to guide their
decisions and enable them to determine whether, in any given
instance, a suit of which a district court has jurisdiction as a
federal court is an appropriate one for the exercise of the
extraordinary powers of a court of equity. . . ."
[
Footnote 27]
Cf. Matthews v. Rodgers, 284 U.
S. 521,
284 U. S. 525;
Moore's Federal Practice, vol. 1, pp. 108, 208;
Grauman v. City
Company of New York, 31 F. Supp.
172; H.R. Rep. No. 308, 80th Cong., 1st Sess., p. A 236 on 28
U.S.C. § 384.
[
Footnote 28]
See Spielman Motor Sales Co. v. Dodge, 295 U. S.
89,
295 U. S.
95.
[
Footnote 29]
Waialua Co. v. Christian, 305 U. S.
91,
305 U. S. 108;
Beal v. Missouri Pacific R. Corp., 312 U. S.
45;
Watson v. Buck, 313 U.
S. 387;
Douglas v. Jeannette, 319 U.
S. 157;
Burford v. Sun Oil Co., 319 U.
S. 315,
319 U. S. 333,
n. 29;
Meredith v. Winter Haven, 320 U.
S. 228,
320 U. S. 235.
Compare Spector Motor Service v. McLaughlin, 323 U.
S. 101.
MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE RUTLEDGE joins,
concurring in part and dissenting in part.
As to No. 52, I join the Court's opinion.
As to No. 474, I would leave the appeal now pending in the Court
of Appeals for the Ninth Circuit to its adjudication there, and not
grant the petition for certiorari. The power which Congress has
given to this Court to short-circuit the Courts of Appeals should
not be exercised except for some compelling reason of wise judicial
administration. No reason is here present that would not be equally
available in almost every case which, even though a constitutional
issue may be involved, cannot come here directly, but must first go
to a Court of Appeals. Congress decided not to provide for such
direct appeals here, and we should not exercise our discretionary
power to grant what Congress has withheld. This discretionary power
should come into play only for those exceptional circumstances for
which Congress designed it.
After finding that we are without jurisdiction to review
directly the decree of the District Court of Hawaii, the Court, in
effect, allows such direct review by not requiring the appeal now
pending in the Court of Appeals to run its normal course of
adjudication in that court. This is justified on the ground that
the case has been fully presented in the District Court and here.
But, if we
Page 336 U. S. 385
would not have brought here an appeal undecided in the Court of
Appeals merely because it had been adjudicated on its merits in the
District Court, there is no more reason for doing so when a direct
appeal from the District Court has been improvidently sought here.
Moreover, the Court is not disposing of the case on its merits. By
lifting the case out of the Court of Appeals, the Court is assuming
the burden of canvassing issues not dealt with below. This entails
the study of new questions and the task of opinion writing. These
are precisely the burdens from which the Court asked to be saved,
and from which Congress saved the Court by the Judiciary Act of
1925. If the regular course of proceeding were followed and the
matter were to be disposed of by the Court of Appeals, as it is now
being disposed of here, the necessity for future consideration here
might never arise beyond that involved in finding no reason for
granting a petition for certiorari, were one to be applied for.
Drains on the Court's time through jurisdictional misconceptions
should be strongly discouraged. We should follow the honored
practice of this Court in dismissing a proceeding that should not
be here
ab initio, even though the Court's time and effort
had been expended after full argument in concluding that a case
should never have been brought here.*
Page 336 U. S. 386
If the attempt had been made to bring No. 474 here prematurely
it would surely have failed. It should not succeed because No. 52
was improperly brought here. Accordingly, I agree with the Court in
dismissing No. 52 for want of jurisdiction, and, in No. 474, I
would deny the petition for certiorari.
* Writs of certiorari granted because of an apparent conflict
between courts of appeals have been dismissed because the existence
of such conflict did not survive argument. And, for these
reasons:
"If it be suggested that as much effort and time as we have
given to the consideration of the alleged conflict would have
enabled us to dispose of the case before us on the merits, the
answer is that it is very important that we be consistent in not
granting the writ of certiorari except in cases involving
principles the settlement of which is of importance to the public,
as distinguished from that of the parties, and in cases where there
is a real and embarrassing conflict of opinion and authority
between the Circuit Courts of Appeals. The present case certainly
comes under neither head."
Layne & Bowler Corp. v. Western Well Works, Inc.,
261 U. S. 387,
261 U. S. 393.