Stainback v. Mo Hock Ke Lok Po/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 the allowance of a writ of certiorari under 28 U.S.C. § 1254(1), 28 U.S.C.A. § 1254(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 J.C. § 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,'  from enforcing it in any particular against 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 earl  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.  Requirements for pupils and teachers in foreign language schools were set out.  Visitation of the foreign language schools by appropriate officials for enforcement purposes was authorized. § 1875. The only sanction for enforcement is by injunction.  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.  See Farrington v. T. Tokushige, 273 U.S. 284, 299, 47 S.Ct. 40 , 409, 71 L.Ed. 646. 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.

The complaint asked for and obtained a three-judge court under the provisions of the Judicial Code § 266.  The minute entries of proceedings and trial and the opinion re applicability of § 266, Judicial Code, 74 F.Supp. at page 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. 

Within the present decade, this Court summarized in Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800, 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. 312 U.S. at pages 250-251, 61 S.Ct. at page 483, 85 L.Ed. 800. While we take judicial notice that since the Phillips case air carriage has brought Hawaii closer to the continent,  the interference with the normal adjudicatory and appellate processes of the federal judicial system and our docket persists. The power 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, 48 U.S.C.A. § 495; Duncan v. Kahanamoku, 327 U.S. 304, 317, 66 S.Ct. 606, 612, 90 L.Ed. 688. Not only its federal courts but also its territorial courts are of course subject to congressional legislation. 48 U.S.C. § 631, et seq., 48 U.S.C.A. § 631 et seq. The Organic Act for Hawaii, § 86,  provided in 1900:

'The 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, 48 U.S.C.A. § 642. It now has that jurisdiction.  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.  As jurisdiction of this Court on appeal depends upon whether or not a special three-judge court was properly called  and not upon the power of this Court to review under Judicial Code § 266, we need not analyze the method of review of the judgments of the District Court of Hawaii. 

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,  the predominant reason for the enactment of Judicial Code § 266 does not exist as respects territories. This reason was a congressional purpose to avoid unnecessary interference with the laws of a sovereign state.  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.  A territory is subject to congressional regulation. 

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 state-wide policy. 

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, 68 S.Ct. 880. In that 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.  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, 47 S.Ct. 406, 71 L.Ed. 646, 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,  where as here the responsibility was on the courts to see that the threejudge judge rule was followed, we think it significant that no one sought to apply § 266 to Hawaii. 

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 Cou t of Appeals of the Ninth Circuit before the entry of a decree in that court. 28 U.S.C. § 2101(d), 28 U.S.C.A. § 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 to review in the Court of Appeals.  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,  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.  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 in the jurisdictional amount, we assume there is both federal and equitable jurisdiction.  Furthermore, there is no problem as to whether or not there is an adequate legal remedy in the federal courts.  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 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,  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.  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 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.

Appeal dismissed in No. 52. Judgment reversed and cause remanded in No. 474.

Mr. Justice FRANKFURTER, with whom Mr. Justice RUTLEDGE joins, concurring in part and dissenting in part. 

Notes