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.