"1 ,i ..

ADJUDICATIONS OF THE

ATTORNEY GENERAL OF THE UNITED STATES

VOLUME I

PRECEDENT DECISIONS UNDER THE

JAPANESE-AMERICAN EVACUATION CLAIMS ACT

1950-1956

EDITED BY

WALTER F. BANSE

UNITED STA TES GOVERNMENT PRINTING OFFICE

WASHINGTON: 19H

TABLE OF CONTENTS

OFFICIALS DURING PERIOD COVERED BY Page

THIS VOLUME_____________________________ v

FOREWORD __ ----- -- -------- -- --- _ __ _ _ __ _ _ ___ VII

TABLE OF ADJUDICATIONS REPORTED AND CITED_---- --- - -- ---- -- ---- --- - -- -- -- --- - - - - XIII

TABLE OF STATUTES CITED________________ XVI

TABLE OF COURT CASES CITED _________ ~-- .. xvm

PRECEDENT ADJUDICATIONS______________ 1

INDEX:---------------------------------------- 393 Ill

For sale by the su~rtntendent or Dooument..<1, U$3. S(.BGo~m)ent Printing Office Washington 25, D. C. • Price UC.a.am

ATTORNEYS GENERAL OF THE

UNITED STATES DURING THE PERIOD COVERED BY

THIS VOLUME

J. HowARD_McGRATH, August 24, 1949-April 7, 1952

JAMES P. McGRANERY, May 27, 1952-January 20, 1953

HERBERT BROWNELL, Jr., January 21, 1953-

A<JTING

PHILIP B. PERLMAN, April 8, 1952-May 26, 1952

VI

ASSISTANT ATTORNEYS GENERAL IN CHARGE OF THE CIVIL DIVISION 1

H. GRAHAM MORISON' March 2, 1948-January 6, 1951

HOLMES BALDRIDGE, March 29, 1951-January 27, 1953

w ARREN E. BURGER, January 28, 1953-April 13, 1956

GEORGE CocHRAN DoUB, April 26, 1956-

AOTING

NEWELL A. CLAPP, January 7, 1951-March 28, 1951

GEORGE s. LEONARD, April 14, 1956-April 25, 1956

CHIEF, JAPANESE CLAIMS SECTI0N 2

ENOCH E. ELLISON' October 6, 1947-

1 By notice dated December 1, 1949, the Attorney General delegated his authority to adjudicate evacuation claims under the Act of July 2, 1948 (62 Stat. 12Sl), to the Assistant Attorney General ln charge of the Claims Division (14 F. R. 7283). Name changed from Claims Division to Civil Division by Attorney General's Order No. 5-53, dated February 13, 1953 (18 F. R.1046).

1 Name changed from General Assignments Section to Japanese Claims Section by Claims Division Circular No. 10, Supp. 10, dated August 14, 1951.

FOREWORD This volume contains adjudications of the Attorney

General of the United States from January 3, 1950, to June 30, 1956, under the Japanese-American Evacuation Claims Act. The adjudications included are limited to those involving legal questions of wide applicability to claims filed with the Attorney General under that Act.

Each adjudication upon its issuance was published in mimeographed form and mailed to lawyers and others having an interest in the·subject matter. As of June 30, 1956, the adjudications had served as the bases for nu-merous other decisions and compromise settlements re-sulting in the disposition of 22,313 claims. Between January 3, 1950, and June 30, 1956, claims were reduced from 24,064 to 1,751 and the aggregate of amounts claimed from approximately $130,000,000 to about $51,-000,000.

An introductory paragraph of each adjudication re-ported herein, reciting the authority of the Attorney General and his d~legation of such authority, has been omitted in this publication, e. g. :

Pursuant to the authority vested in the Attorney Gen-eral of the United States by the Act of July 2, 1948 {62 Stat. 1231; 50 U.S. C. App., §§1981-1987), and by him delegated to the Assistant Attorney General in charge of the Civil Division of the Department of Justice by Notice published in the Federal Register on the 3d day of December 1949 (14 F. R. 7283), as amended by Order No. 5-53, published therein on the 21st day of February 1953 (18 F. R. 1046), the above-designated claim is adjudicated as follows :

Also omitted from the adjudications reported herein are the formal awards and orders of dismissal.

VII

VIII

On August 1, 1951, the following Notice was given by the Assistant Attorney General.

Hereafter only those portions of adjudications of the Evacuation Claims Program that have preceden-tial value will be mimeographed and distributed. This will save the time of the reader, make for convenience in handling, conserve vital material and be more eco-nomical. Anyone desiring to do so may inspect orig-inal adjudications during working hours by making application therefor at Room 3337, Department of Jus-tice Building, 9th Street and Pennsylvania Avenue, NW., Washington, D. C.

The Japanese-American Evacuation Claims Act of July 2, 1948, as amended (Public Law 886, 80th Cong., 62 Stat. 1231, as amended by Public Law 116, 82d Cong., 65 Stat. 192; 50 U. S. C. App., §§ 1981-1987), is as fol-lows:

Be it enacted by the Senate and BO'U8e of Reyre-aentatives of the United States of America in OongTeas assembled, That the Attorney· General shall have jurisdiction to determine according to law any claim by a person of Japanese ancestry against the United States arising on or aftei; December 7, 1941, when such claim is not compensated for by insurance or other-wise, for damage to or loss of real or personal property ( including without limitation as to amount damage to or loss of personal property bailed to or in the cus-tody of the Government or any agent thereof), that is a reasonable and natural consequence of the evacu-ation or exclusion of such person by the appropriate military commander from a military area in Arizona, California, Oregon, or Washington; or from the Ter-ritory of Alaska, or the Territory of Hawaii, under authority of Executive Order Numbered 9066, dated February 19, 1942 (3 CFR, Cum. Supp., 1092), section 67 of the Act of April 30, 1900 (48 U. S. C. 532), or Executive Order Numbered 9489, dated October 18, 1944 (3 CFR, 1944 Supp., 45). As used herein "evac-uation" shall include voluntary departure from a mili-

IX_

tary area prior to but in anticipation of an order of exclusion therefrom.

LUIITATIONS; CLADrS NOT TO BE CONSIDERED

SEc. 2. (a) The Attorney General shall · receive claims for a period of eighteen months from the dat.e

· of enactment of this Act. All claims not presented within that time shall be forever barred.

(b) The Attorney General shall not consider any claim-

( 1) by or on behalf of any person who after Decem-ber 7, 1941, was voluntarily or involuntarily deported from the United States to Japan or by and on behalf of any alien who on December 7, 1941, was not actually residing in the United States;

(2) for damage or loss arising out of action taken by any Federal agency pursuant to sections 4067, 4068, 4069, and 4070 ( relating to alien enemies) of the Re-vised Statutes, as amended (50 U. S. C. 21-24), or pursuant to the Trading With the Enemy Act, as amended (5~ U. S. C. App., and Supp., 1-31, 616);

( 3) for damage or loss to any property, or interest therein, vested in the United States pursuant to said Trading With 1 ~he Enemy Act, as amended;

(4) for damage or loss on account of death or per-sonal injury, personal inconvenience, physical hard-ship, or mental suffering; and

( 5) for loss of anticipated profits or loss of antici-pated earnings.

HEARING~; EVIDENCE; RECORDS

SEc. 3. (a) The Attorney -General shall give reason-able notice to the interested parties and an opportunity for them to be heard and to present _evidence before mak-ing a final determination upon any claim.

(b) For the purpose of any hearing or investigation authorized under this Act, the provisions of sections 9 and 10 (relating .to examination of documentary evi-dence, attendance of witnesses, and production of books, papers, and documents) of the Federal Trade Commis-

sion Act of September 26, 191'4, as amended (15 U.S. C. 49, 50), are hereby made applicable to the jurisdiction, powers, and duties of the Attorney General. Subpenas may be served personally, by registered mail, by tele-graph, or by leaving a copy thereof at the residence or principal place of business of the person required to be served. .A. verified return by the individual so serving the same, setting forth the manner of service, shall be proof of service. The United States marshals or their deputies shall serve such process in their respective districts.

( c) A written record shall be kept of all hearings and proceedings under this Act and shall be open to public inspection.

ADJUDICATIONS ; PAna:.N'l' OF AW A.RDS; EFFECT OF .ADJUDICATIONS

SEO. 4. (a) The Attorney General shall, except as to claims compromised under section 7 of this Act, adjudi-cale all claims filed under this Act by award or order of dismissal, e.s the- case may be, upon written findings of fact and reasons for the decision. A copy of each such adjudication shall be mailed to the claimant or his attorney.

(b) The Attorney General may make payment of any award not exceeding $2,500 in amount out of such funds as me.y be made available for this purpose by Congress.

( c) On the first day of each regular session of Congress the Attorney General shall transmit to Congress a full and co~plete statement of all adjudications rendered under this Act during the previous year, stating the name and address of each claimant, the amount claimed, the amount awarded, the amount paid, e.nd a br:ief syn-opsis of the facts in the case and the reaso~ for each adjudication. All awards .not paid und~r subsection (b) hereof shall be paid in like manner as are fine.I judgments of the Court of Claims.

( d) The payment of an award sliall be final and con-clusive for all purposes, notwithstanding any other provision of law to the contrary, and shall be o. full discharge of the United States and all of its officers,

XI

agents, servants, and employees with respect to all claims arising out of the same subject matter. An order ,of dismissal against a claimant, unless set aside by the At-torney General, shall thereafter bar any further cla.im against the United States or any officer, agent, servant, or employee thereof arising out of the same subject matter.

ATI'ORNEYS' FEES

SEc. 5. The Attorney General, in rendering e.n award in favor of any claimant, may as a part of the award determine and allow reasonable attorneys' fees, which shall not exceed 10 per centum of the amount allowed, to be paid out of, but not in addition to, the amount of such award.

Any attorney who charges, demands, receives, or col-lects for services rendered in connection with such claim any amount in excess of that allowed under this section, if recovery be had, shall be guilty of a misdemeanor, and shall upon conviction thereof be subject toe. fine of not more. than($2,000, or imprisonment for not more than one year, or both.

ADMINISTRATION

SEc. 6. For the purposes of this Act the Attorney General may-

( a) appoint a clerk and such attorneys, examiners, in-terpreters, appraisers, and other employees as may be necessary;

(b) call upon any Fedeml department or agency for any information or records necessary ;

( c) secure the cooperation of State and local agencies, governmental or otherwise, and reimburse such agencies for services rendered;

( d) utilize such voluntary and uncompensated serv-ives as may from time to time be needed and available;

( e) assist needy claimants in the preparation and filing of claims ;

( f) make such investigations as may be necessary; (g) make expenditures for witness fees and mileage

and for other administrative expenses;

XII

(h) prescribe such. rules and regulations, perform such acts not inconsistent with law, and delegate such authority as he may deem proper in carrying out the provisions of this Act.

APPROPRIATIONS

SEc. 7. There are authorized to be appropriated for the purposes of this Act such sums as Congress may from time to time determine to be necessary, which funds shall be available also for payment of settlement awards, which shall be final and conclusive for all purposes, made by the Attorney General in compromise settlement of such claims upon the basis of affidavits and available Government records satisfactory to him, in amounts. which shall not in any case exceed either three-fourths of the amount, if any, of the claim attributable to com-pensable items thereof or $2,500, whichever is less.

Under an appropriate delegation of authority, the responsibility for the investigation of claims, for com-promises, and for the preparation of adjudications under the Act has been vested in the Japanese Claims Section of the Civil Division of the Department of Justice. The

. lawyers of the section have ably, efficiently, and conscien-tiously discharged that responsibility. · All published decisions of the Attorney General under

the foregoing Act are set forth in this volume. They may be cited thus: 1 ADJ. A.G. 1.

GEORGE COCHRAN DOUB, A8sistant Attorney General

Civil Division.

Note. Public Law 673, 84th Congress, approved July 9, 1956, further amended the Japanese-American Evacuation Claims Act by enlarging the Attorney General's authority to make compromise settlements from '2,500 to $100,000, by transferring the adjudicative function to the Court of Claims, and by bringing certain, additional claims within the coverage of the Act. ED.

-f ;,.;,. '.i !.. :'~

i ~-

TABLE OF ADJUDICATIONS REPORTED .AND CITED 1

Pace Akano, Hatsuzo ____ -------------- 123 Ando, Masao____________________ 38; 177, 281 Bando, Seiji_____________________ 68; 120, 161, 173, 195, 208, 226,

Chihara, Tamehiko George ________ 250 Down, Julius __ ;. _________________ 308

287

Endo, Ta.keshi___________________ 48; 222 Fujioka, Kenichi _________________ 174; 264, 310 Fujishima, Shige _________________ 296 Furuya, Roy ____________________ 288; 376 Hashioka, KiheL ________________ 176 Hata, Tokutaro__________________ 21; 34, 94,210 Hatamoto, Suetatsu ______________ 140; 201 Hayashida, TakayoshL ___________ 387 Hirata, Akira____________________ 32; 181, 264, 310 Honda, Paul, and Kusunoki, Riku_ _ 259 Horio, Shigeru Ri9hard_ _ _ _ _ _ _ _ _ _ _ 293; 389 Imai, Hatsujire__________________ 61; 265

-. Imanaka, Kazuto __ -------------- 35; 142, 149, 163, 207 Ishige, Hatsu____________________ 66; 211, 265 lshino, Yuki _____________________ 320 Ishizawa, Ishi ___________________ 119; 177,281 Isozaki, Fuss.taro ________________ 193; 294, 3ll, 352,384 Itow, Haruko____________________ 51; 107,379 Iwamoto, Michl __________________ 369 Iwasaki, Ernest K ________________ 156; 20.1, 241 Izumi, Miyo and Sadako __________ 374 Kaku, Frank Tokuhei_ ___________ 29; 91, 97, 150, 155, 264, 276,

365 Kashiwagi, Kofusa _______________ 270; 283, 315 Katagihara, Yoshiharu s__________ 99; 158,241, 310 Katsuma, Sina ___________________ 186; 217,224,279, 335 Kawaguchi, George M____________ 14; 52, 80, 107, 132, 231, 258,

317, 323, 344, 349 Kikuchi, Tetsuko ___ ------------- 153; 181 Kishi, Asako ____ ----------- ----- 96 Kojima, Fumiyo _________________ 209; 249, 253, 257, 262, 265, 272,

281, 338, 362 1 Heavy-faced fliures indicate pages on which adjudications are reported and light-laced

ilitll'eS indicate pages on which they are cited. This table does not include mere routine Citations. See, e. , .• citation of T~ld Shimoma11e which apDears on page 10, po,t.

xru

XIV

Paare

Kono, Otoichi __ ----------------- 238; 367 Kum.ano, Shuzo ______ ':..----------- 148; 161, 207, 246, 287, 295, 298,

384 Kusumi, Niwaye _________________ 340 Matsuhiro, KiniL---------------- 146 Matsui, Nobuo __________________ 284 Matsumoto, Yaemon------------- 197,203; 249 Miyagawa, Masaki--------------- 242; 383,389 Miyaji, Ma?Y-------------------- S Morimoto, Gunnosuk.e ____________ 219; 278 Mukai, Sawayo------------------ 337 Murai, KiyoiL------------------ 45;89, 105, 137, 182, 261, 290,

376 Nagai, Dorothy Haruko ____ - - _ - - - 82 Nags.mine, Kinjiro a.nd Take______ 18; 158 N'agasaki, Tobe------------------ 303;352 Nagashima, YasuheL------------- 135; 155,181,215, 261, 291 Nakagawa, Ha.rry Suekichi-------- 216; 305 N'akagawa, Shigeru Henry________ 9S; 145,175,215,258 N'akamura, Frank Yeizo __________ 144 N'akamura, Torao---------------- 277;335,352,378 Nakamura, Toshichi-------------- 108; 173,204,246,289,383 N'akanishi, Owasa---------------- 223 Nakata, Harry B----------------- 168 N'ishibayashi, Jintaro and Yoshie ___ 329

· N'oda, TetsuO-------------------- 84; 145, 152 Oda, Hirotoshi J., et al----------- 361 Ogawa, Hannah M---------· ----- 301; 328 Okano, N'izo_____________________ 41;85, 134,152,310 Orimoto, Shigemi ___ ------------- 103; 137, 155, 181, 290 Oshima, Frank Kiyoshi- _ - - - _ - - - - - 24; 85, 159 Otsubo, Katherine M------------- 336 Sakai, Kuneo Jt.ck--------------- 325 Sakurai, Takeshi_ _ _ _ _ _ _ _ _ _ _ _ _ 346, 356; 366, 372, 378 Saneto, Frank ___ ---------------- 191 Sato, Frank Miyokichi.----------- 266 Shiino, George ___________________ 160; 287,384 Shimomaye, Toshi_______________ 1; 147 Shimomaye, Yoshio Bert __________ 254; 283 Sogawa, M&ry------------------- 126;139, 147,159,349 Sugihara, Junichi Frank.--------- 81; 105,239 Sumi, Noboru ___ ---------------- 225; 311, 341,349,372 Suyehiro, Alice.----------------- 298;379, 383 Suzuki, George E. _ -------------- 363; 379, 383 Taka, Sam---------------------- 178 Takahashi, Taro Kenneth _________ 183; 207, 249 Takayama, Ryoko ___ ------------ 263; 311 Takemoto, Tatsuno-.------------- 247; 265

I

t

TABLE OF STATUTES CITED

UNITED STATES CONSTITUTION

See Constitutional law in Index at end of volume.

Pap

1900, April 30, § 67, 31 Stat. 153------------------------- 188,335 1922, Dec. 28, 42 Stat. 1066------------------------------- 135 1940, Oct. 17, 54 Stat. 1179------------------------------- 190 1942, March 21, ch. 191, 56 Stat. 173--------------------- 314,334 1944, July 1, ch. 368, § 401 (i), 58 Stat. 61'1----------------- 169 1947., July 26, 61 Stat. 499-------------------------------- 190 1948, June 25, § 507, 62 Stat. 869, 910---------------------- 301 1948, July 2, § l, 62 Stat. 1231-------------- 212,249,256,311,361 1948, July 2, § 2 (a), 62 Stat. 1231------------------- 105,139,301 1948, July 2, § 2 (b) (1), 62 Stat. 123L ____________ 40, 163,184,212

STATUTES OF THE UNITED STATES

1948,. July 2, § 2 (b) (2), 62 Stat. 1231------------ 127,204,268,305 1948, July 2, H 2 (b) (4), (5), 62 Stat. 1231-______ 116, 131,147,365 1948, July 2. § 3 (a), 62 Stat. 1231------------------------- 217 1948, July 2, § 4 (a), 62 Stat. 1232------------------------- 65 1948, July 2, § 4 (d), 62 Stat. 1232-------------------- 65,339,356 1948, July 2, § 6 (h), 62 Stat. 1233------------------------- 328 ·1949, March 15, 63 Stat. 12------------------------------- 86 1949, Aug. 10, 63 Stat. 579-------------------------------- 190 1951, Aug. 17, § 2, 65 Stat. 192---------------------------- 338

REVISED STATUTES §362___________________________________________________ 302 H 4067, 4068, 4069, 4070--------------------------- 121,204,211

UNITED STATES CODE

Title 5· § 311------------------------------------------- 302 Title 8: Supp. IV (1940 Ed.),§ 801 ti)--------------------- 169 Title 18: § 97a------------------------·---------------- 314,334 Title 28:

§501----------------------------------------------- 301 § 723 (c), Rule 6 (a)---------------------------------- 325 § 723 (c), Rule 15------------------------------------ 106 § 723 (c), Rule 15 (a)--------------------------------- 139 § 723 (c), Rule 15 (c>--------------------------------- 291 § 723 (c), Rule 17 (a>--------------------------------- 75 § 1331______________________________________________ 212

XVI

XVII

Pa&'e Title 31:

§ 122_______________________________________________ 71 §215_______________________________________________ 135

Title 48: § 532----------------------------------------- 188,335 Title 50: §§ 21-24 __________________________________________ 204,217

. App., § 1981--------------------------- 212,249,256,311,361 App.,§ 1982 (a)------------------------------- 105,139,301 App., § 1982 (b) (1)------------------------- 40, 183,184,212 App., § 1982 (b) (2)---------------------------- 127,204,217 App.,§ 1982 (b) (4), (5)-------------------- 116,131,147,365 App., § 1983 (a,) __ ~---------------------------------- 217 App., § 1984 (a.) __ ----------------------------------- 65 App., § 1984 (d)-------------------------------- 65,339,356 App.,§ 1986 (h)------------------------------------- 328 App., § 1987 _____________ - __ ---- -------- -- _ - --------- 338

PRESIDENTIAL PROCLAMATIONS

2525.Dec.7, 1941---------------------------------- 145,179,217

EXECUTIVE ORDERS

8953, Nov. 27, 1941- _ --- ------- --------- -------- __ __ _ _ _ __ 187 8972, Dec. 12, 1941--------------------------------------- 187 9066, Feb. 19, 1942-------------------------- 29, 124, 189,217,330 9489, Oct. 18, 1944--------------------------------------- 188

STATUTES OF THE STATES California:

Civil Code (1949}, § 157 ______________________________ 54 Civil Code (1949), § 158-------------------------- 54, 97, 114 Civil Code (1949), § 161a._____________________________ 264 Civil Code (1949), § 162------------------------------ 54 Civil Code (1949), §-163______________________________ 50 Civil Code (1949), § 164 _____________________________ 97, 120 Civil Code (1949), § 169______________________________ 121 Civil Code (1949), § 172 ___________________________ 10, 23, 60 Civil Code (1949), § 687 ______________________________ 97 Civil Code (1949), § 1019 _________________________ 30

1 92, 150

Probate Code (1949), § 200____________________________ 265 Probate Code (1949), §§ 20\, 202 ___________________ 62, 67, 80 Probate Code (1949), § 630 _______ ~------------------=- 265

Massachusetts: Massachusetts Practice Act, § 5L___________ 291 Utah: Utah Code Ann. (1943), § 75-2-1-------------------- 293

8911M-56---2

TABLE OF COURT CASES CITED

Acheson v. Murakami, 176 F. 2d 953-----------------------Altahause, Matter of, 158 N. Y. 67-0.-----------------------American Life Ins. Co. v. McAden, 109.Pa. 399 _____________ _

Pa1e .3

110 230

American. Smelting and Refining Co. v. Riverside Dairy and Stock Fann, 236 Fed. 510------------------------------- 322

American Stevedores, Inc. v. Porello, 330 U.S. 446___________ 318 Arnold v. Lumas, 170 Cal. 95------------------------------ 114 Arrow Wood v. Board of Education, 269 Ky. 464 __ - __ - _ _ _ _ _ _ 351 Bagdasarian v. Gragnon, 31 C31. 2d 744-------------------- 322 Baltimore, The, 8 Wall. 377 ________ ----------------------- 18 Barlow v. United States, 87 C. Cls. 281--------------------- 134 Barrow, Porter & Co. v. United States et al., 30 C. Cls. 54____ 336 Barthel v. St~mm, 145 F. 2d 481--------------------------- 106 Becker Steel Co. v. Cummings, 296 U. 8. 74----------------- 317 Beemer v. Roher, 137 Cal. App. 293------------------------ 122 Beville v. Allen, 28 Ariz. 397 ____ ----- ------ ---- _ - --------- 322 Behn, Myer & Co. v. Miller, 266 U.S. 457------------------ 317 Bemis Bros. Bag Co. v. United States, 289 U.S. 2$ __ ------ 106, 336 Benson v. City of Ottumwa, 143 Iowa 349 ___ --------------- 106

· Billings v. Commissioner, 35 B. T. A. 1147 ____________ .______ 228 Black v. Supreme Council, American Legion of Honor, 120 Fed.

580, aff'd 123 Fed. 650, cert. den. 191 U. S. 568------------ 230 Blagge v. Balch, 162 U.S. 439----------------------------- 211 ·Blethen v. Pacific Mut. Life Ins. Co., 198 Cal. 91------------ 341 Bluefield Co. v. Public Service Commission, 262 U.S. 679 __ -- 18 Blumenthru v. Commissioner of Internal Revenue, 6 F. 2d 716-- 122 Bowles v. Nelson-Ricks Creamery Co., 66 F. Supp. 885_______ 326 Brooks-Scanlon Corp. v. United States, 265 U.S. 106_________ 18 Brown v. Brown, 33 N. J. Eq. 650------------------------- 117 Brown v. Oxtoby, 45 Cal. App. 2d 702______________________ 115 Buchanan v. Patterson, 190 U.S. 353.--------------------- 317 Bugajewitz v. Adams, 228 U.S. 585----------------·-------- 164 Burnet v. Willingham L. & T. Co., 282 U.S. 437____________ 325 Caminetti v. Pacific Mut. Life Ins. Co., 23 Cal. 2d 94-________ 228 Campbell v. Galeno Chemical Co., 281 U.S. 599_____________ 328 Canadian Aviator, Ltd. v. United States, 324 U. 8. 215_______ 318 Capital City Ben. Soc. v. Travers, 4 F. 2d 290 _____________ 230,344 Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403________ 351 Carr v. Hamilton, 129 U.S. 252--------------------------- 227 Chase National Bank v. United States, 278 U.S. 327_________ 228 Chew v. Brumagen, 80 U.S. 497 ___ --------------------- ___ 75

XVIII

XIX

Pap Commissioner of Internal Revenue v. Cavanaugh, 125 F. 2d

366___________________________________________________ 121 Connell v. Crosby, 210 Ill. 380----------------------------- 106 Daily v. United States, 90 F. Supp. 699_____________________ 322 Devlin v. United States, 12 C. Cls. 266_____________________ 336 Dill, Succession of, 155 La. 49_____________________________ 122 Dixon v. Dixon, 4 La. 188--------------------------------- 121 Doty v. American National Ins. Co., 350 Mo. 192____________ 233 Eger's Will, In re, 247 N. Y. Supp. 527 _____________________ 116 Emerson v. Hall, 13 Pet. 409______________________________ 210 Emery v. Boston Terminal Co., 178 Mass. 172_______________ 385 Fogel v. Commissioner of Internal Revenue, 203 F. 2d 347____ 325 Fong Yue Ting v. United States, 149 U.S. 698______________ 164 Frick v. Lewellyn, 298 Fed. 803---------------------------- 228 Fuller et ux. v. Metropolitan Life Ins. Co., 70 Conn. 647 ______ 232 Georgia Ry. & Power Co. v. Railroad Commission, 262 U. S.

625___________________________________________________ 18 Gray, P. N., & Co. v. Cavalliotis, 276 Fed. 565______________ 76 Griffin v. ~cCoach, 116 F. 2d 261, rev'd on other grounds in

313 u. s. 498__________________________________________ 228· Grigsby v. Russell, 222 U.S. 149___________________________ 228 Grimm v. Grimm, 26 Cal. 2d 173__________________________ 341 Gugel v. Isaacs, 21 N. Y. App. Div. 503____________________ 117 Guggenheim v. Rasquin, 312 U.S. 254.._____________________ 227 Hardin v. Boyd, 113 U.S. 756----------------------------- 106 Heimer v. Gr~ndin, 44 F. 2d 141--------------------------- 228 Helvering v. Campbell, 139 F. 2d 865 ______________ ·_________ 122 Hirabayasbi v. United States, 320 U.S. SL----------------- 3, 49 Hulsman v. Ireland, 205 Cal. 348 _____ -------------------- _ 1'15 Hunter v. Robbins, 117 Fed. 920--------------------------- 76 In re. See name of party. Jacobs v. United States, 290 U.S. 13----------------------- 19 Johansen v. United States, 343 U.S. 427____________________ 318 Johnson v. Gila County, 21 Ariz. 136_______________________ 351 Johnson v. National Surety Co., 118 Cal. App. 227 _ _ _ _ _ _ _ _ _ _ _ 114 Justesen v. Pennsylvania R.R. Co., 92 N~J. L. 257__________ 70 Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381__ 318 Kendall v. Uland, 120 N. Y. 152--------------------------- 117 Kimball Laundry Co. v. United States, 338 U.S. L---------- 289 Klamath Indians v. United States, 296 U.S. 244_____________ 317 Korematsu v. United States, 323 U. s.-214 ______________ 3,133,231 Koshland v. Helvering, 298 U. S. 441----------------------- 328 Labarthe v. McRae, 35 Cal. App. 2d 734____________________ 326 Lester v. Mining Co., 27 Utah 470 ______________________ -___ 322 Life & C. Ins. Co. v. Baber, 168 Tenn. 347 __________________ 230 Lovell v. St. Louis Mut. Life Ins. Co., 111 U.S. 264_________ 228 Lucas v. Alexander, 279 U.S. 573__________________________ 228 Lycoming Fire Insurance Co. v. Haven, 95 U.S. 242_________ 110

xx Pace

Manhattan General Equipment Co. v. Commissioner of Internal Revenue, 297 U. S. 129--------------------------------- 328

Maty v. Grasselli Co.,..303 U. S. 191------------------------ 106 Mersey Docks and Admiralty Commissioners, In re, 3 K. B. 223

(1920) ___________ . ------------------------------------ 18 Meyer v. Thomas, 37 Cal. App. 2d. 720_ -------------------- 115 Miller v. Robertson, 266 U.S. 243_·------------------------ 318 Miller & Lux, Inc. v. Pinelli, 84 Cal. App. 42---------------- 322 Minnesota Rate Cases, 230 U.S. 352------------------------ 19 Mutual Reserve Fund Life Assn. v. Ferrenbach, 144 Fed. 342- _ 228, 344 National Labor Relations Board v. North American Aviation,

136F. 2d898__________________________________________ 327 Newport National Bank v. The Herkimer County National

Bank, 225 U.S. 178------------------------------------ 255 New York Life Ins .. Co. v. Statham et al., 93 U.S. 24________ 228 N. Y. Cent. R.R. v. Kinney, 260 U.S. 340----------------- 106 Odone v. Marzocchi, 34 Cal. 2d 431------------------------ 341 Ohio Utilities Co. v. Public Utilities Commission, 267 U.S. 359_ 18 Parsons v. Commissioner, 16 T. C. No. 34___________________ 234 Pasadena v. Porf:er, 201 Cal. 381--------------------------- 299 Pope v. United States, 323 U. S. L- ----------------------- 211 Powers v. Commissioner, 312 U.S. 259--------------------- 227 Price v. Forest, 173 U.S. 410------------------------------ 211 Prigg v. Pennsylvania, 16 Pet. 539--- .. --------------------- 212 Primos Chemical Co. v. Fuller Steel Corp., 254 Fed. 428_ _ _ _ _ _ 110 Pritchard v. Norton, 106 U. S. 132------------------------- 255

'Ramsey v. Tacoma Land Co., 196 U.S. 360_________________ 317 ~iggle v. Rogan, 37 F. Supp. 1---------------------------- 114 Rimmer v. United States, 172 F. 2d 1}54-------------------- 326 Roberts v. Mills, 56 Cal. App. 556------------------------- 92, 98 Roy v. Salisbury, 21 Cal. 2d 176--------------------------- 6 Rummel v. N. Y. L. & W. Railway Co., 9 N. Y. Supp. 404____ 117 Russell Co. v. United States, 261 U. S. 514------------------ 18 Ryerson v. United States, 28 F. Supp. 265 .... _____________ 228,343 Sadler v. Pure Oil Co., 172 S. C. 220----------------------- 256 St. Louis Railroad v. Alexander, 106 Tex. 518_______________ 352 Santa Rita, The, 173 Fed. 413----------------------------- 71 Schewson v. United States, 31 C. Cls. 192------------------- 336 Seaboard Air Line v. Kenney, 240 U.S. 493_________________ 211 Seaboard Air Line Railroad Co. v. United States, 261 U.S. 299_ 19 Sears v. Rule, 27 Cal. 2d 131------------------------------ 40 Security Co. v. Willamette Co., 99 Cal. 636 _________________ 92, 98 Sheets v. Seldon's Lessee, 2 Wall. 177 _______________ :.______ 325 Sherwood Bros. v. District of Columbia, 113 F. 2d 162________ 325 Shotwell v. Dodge, 8 Wash. 331---------------------------- 322 Siberwell v. Siberwell, 214 Cal. 761------------------------- 40 Silver v. Ladd, 74 U. S. 219------------------------------- 317

XXI

Pap Southern California Fisherman's Assoc. et al. v. United States,

174F. 2d 739------------------------------------------ 320 Southern Railway Co. v. Cunningham, 152 Ala. 147 __________ 106 Southwestern Bell Telephone Co. v. Public Service Commission,

262 u. s. 276__________________________________________ 18 Speer v. Phoenix Mutual Life Ins. Co., 36 Hun. (N. Y.) 322___ 228 Standard Oil Co. v. Southern Pacific Co., 268 U. S. 146 ______ 18, 232 State ex rel. Globe-Democrat Publishing Co. v. Gehner, 316

Mo. 694-----------------------------------·---------- 255 Stegeman v. Vandeventer, 57 Cal. App. 2d 753______________ 116 Teller v. Bay and River Dredging Co., 151 Cal. 209__________ 322 Tennessee v. Davis, 100 U.S. 257-------------------------- 212 Thorn v. DeBreteuil, 86 N. Y. App. Div. 405________________ 117 Toronto City Corp. v. Toronto Railway Corp., [1925) A. C. 177 _ 18 Union National Bank v. Lamb, 337 U.S. 38_________________ 326 United States Smelting Co. v. Sisam, 191 Fed. 293 _____ ·______ 322 United States v. Aetna Surety Co., 338 U. 8. 366 __ ---------- 318 United States v. Anderson, 9 Wall. 56---------------------- 318 United States v. Andrews, 302 U.S. 517 ------------------ 107, 138 United States v. Commodities Corp., 339 U. S. 121----------- 19 United States v. Curran, 16 F. 2d 958______________________ 164 United States v. Factors and Finance Co., 228 U. S. 89_______ 107 United States v. Forty Acres of Land in the County of Los

Angeles, State of California., et al., No. 2078-H Civil, decided April 4, 1949, in the United States District Court for the Southern District of California.___________________________ 321

United States v. Henry Prentiss & Co., 288 U.S. 73__________ 107 United States v. Hotel Co., 329 U.S. 585 ______________ 19,231,324 United States v. Irwin, 127 U.S. 125----------------------- 133 United States v. Memphis CottQn-Oil Co., 288 U.S. 62_______ 106 United States v. Missouri Pac. R. Co., 278 U.S. 269_________ 328 United States v. Northwestern Express Co., 164 U. S. 686_____ 317 United States v. Padelford, 9 Wall. 531--------------------- 318 United States v. Petty Motor Co., 327 U. S. 372_____________ 299 United States v. Realty Co., 163 U.S. 427 ------------------ 211 United States v. Ryerson, 312 U.S. 260 __________________ 227,343 United States v. San Jacinto Tin Co., 125 U. S. 273__________ 302 United States v. Senecal, 37 F. 2d 388---------------------- 325 United States v. Sherwood, 312 U.S. 58-! ____________ J______ 317 United States v. Smith, 158 U.S. 3-!6______________________ 302 United States v. Wong Kim Ark, 169 U.S. 649______________ 169 United States v. 576,734 Acres of Land, 143 F. 2d 408, cert.

den. 323 U.S. 716-------------------------------------- 323 United Verde Copper Co. v. Ralston, 46 F. 2d !_____________ 322 Van Dyke v. Commissioners, 120 Fed. 945__________________ 6 Vedder, In re, 15 N. Y. Supp. 798__________________________ 117 Vermilya-Brown Co. v. Connell, 335 U. S. 377 _____________ 190, 319 Watson v. Mass. Mut. Life Ins. Co., 140 F. 2d 673___________ 230

XXII

Pa1re Welfer, Estate of, 110 Cal. App. 2d 262--------------------- 341 Wilkes v. United States, 192 F. 2d 128---------------------- 326 Williams v. Heard, 140 U. ·s. 529--------------------------- 211 Willia.ms v. United States, 289 U.S. 553____________________ 17 Winfree v. Jones, 104 Va. 39------------------------------ 71 Wissner v. Wissner, 338 U.S. 655 ________________________ 211,282 Wolfsen v. Hathaway, 32 Cal. 2d 632----------------------- 322 Wren v. Wren, 100 Cal. 276------------------------------- 6 Yonejiro Nakasuji v. Seager, 73 F. 2d 37 ____________________ 164

PRECEDENT ADJUDICATIONS

OF THE

ATTORNEY GENERAL OF THE UNITED STATES

CLAIM OF TOSH! SHIMOMAYE [No. 146-85-270. Decided April 14, 1950]

FINDINGS OF FACT

This claim, in the amount of $449.90, was reeeived by the Attorney General on January 18, 1949. The claim involved the loss of a. bedroom set, a.n ·electric sewing ma-chine, a radio, 3 figurines, a. chinaware closet cabinet, an electric stove, a. lamp, a. bamboo screen, a card table and 4 chairs, a. desk, a. fur coat, 2 singing canaries and 2 bird

~. cages. The claimant was born in Spokane, Washington, on March 10, 1915, of Japanese parents. On December 7, 1941, and for sometime previously, claimant actually resided at 112 North San Pedro Street, Los Angeles, and was living at 2609 East First Street, Los Angeles, when she was evacuated. on May 29, 1942, under military orders pursuant to Executive Order No. 9066, dated February 19, 1942, and sent to Poston Relocation Center, Arizona. Claimant had been married to George Kato but was di-vorced from him and was evacuated under the name of Katsumura, and while in the Relocation Center married Shimomaye. At no time since December 7, 1941, has claim.ant gone to Japan. At the time claimant wae evacu-ated, she was unable to take the above-mentioned prop• erty with her to the Relocation Center, and she sold all the property to the highest bidders she could find. Claim-ant would not have sold this property but for her evacua-

1 '

308

CLAI1\!I OF JULIUS DOWN [No. 146-35-3593. Decided February 26, 1953]

FINDINGS OF FAcrt

This claim, in the amount of $412, was received by the Attorney General on May 9, 1949, and alleges loss of per-sonal property through forced sale, voluntary gift, invol-untary "gift," and theft from storage. All the property involved represented community estate of claim.ant and his wife, Emµce Pearl Down, at the time of alleged loss. Claimant, a citizen of Japan, was born in Yokohama, Japan, on October 28, 1922, of parents likewise born in Yokohama and citizens of Japan but -of Eurasian descent, each being three-fourths European and one-fou,rth Jap-anese. Claimant's wife, nee Eunice Pearl Bailey, was born in McAllister, Oklahoma, on September 4, 1923, of Causasian parents. Neither claimant nor his wife has gone to Japan at any time since December 7, 1941. On the latter date, also for several months before and after, claimant and his wife actually resided at 721% North ~adison Avenue, Los Angeles, California, at which ad-dress their daughter, Juliette Eleanor Down, was born on ·January 11, 1942. After the daughter's birth and shortly before their evacuation, the family moved to 449 North Virgil Avenue, Los Angeles, the home of claimant's parents: They were living at this address when evacu-ated, together with claimant's parents, on May 10, 1942, under military orders pursuant to Executive Order No. 9066, to the Pomona Assembly Center and from there, later, to the Heart Mountain Relocation Center where their son, Martin Cordell Down, was born on June 30, 1943.

At the time of his evacuation, claimant possessed a 1935 Ford sedan, combination radio-phonograph from which

309

· the shortwave receiving apparatus had been removed and on which he still owed a balance of $65, ~ s~all table radio without shortwave band, baby bed with mattress, bath-inette, a "Taylor Tot," 2 end tables, dishes and kitchen-ware, ironing board, drying racks and kindred household miscellany, some silverware, and a Pomeranian dog. Be-cause no storage facilities were available to him, claimant concluded to sell all of the foregoing items with the ex-ception of the silverware, which he took with him to the relocation center, and the Pomeranian dog. Rather than sell the dog to a stranger, claimant presented it to the children of a neighbor who were fond of the dog and who, he felt, would take good care of it. Claimant's efforts at sale were partially successful and he succeeded in selling the automobile and radio-phonograph. No free market --being available to him at the time, claimant received only $127 for the automobile, then fairly worth $265, and· but $17 for the radio.;phonogr~ph, the then fair value of which was $125. His resultant loss, therefore, after deduction of the $65 balance due on the radio-phonograph, was $181. Claimant's act of sale was reasonable in the circumstances. Claimant was unable to sell the remaining items, the then fair value of which was $113.95, and accordingly gave them away to neighbors and friends, the circumstances of the "gifts" being tantamount to abandonment. This ac-tion was likewise reasonable.

Claimant remained at the relocation cei;iter until No-vember 22, 1943, when he was granted leave to relocate in Chicago. His family continued on at the relocation center, however, remaining until January 24, 1944, when claimant's wife was granted leave"to return to Los Angeles. At the time of the wife's departure from the relocation center, WRA crated her personal belongings, including the aforementioned silverware, and shipped them to her place of residence in Los Angeles. Following her retttrn to Los Angeles, claimant's wife was forced to take tempo-rary quarters in a boarding house where she and the chi!-

310

~en lived pending reunion with claimant and reestablish-ment of their home. Because her lodgings could not accommodate her household belongings, claimant's wife stored the crate containing the latter in a shed adjoining the building. The shed· was unsafe for' storage, being ex-posed to theft, but claimant's wife had no knowledge of this fact and her action was in any event reasonable since no other facilities were available to·her. While the crate was so stored, it was broken into and-claimant's silverware, then fairly worth $20, was stolen. Claimant has never recovered his silverware despite diligent inquiry and search.

The losses involved have not been compensated for by insurance or otherwise.

REASONS FOR DECISION

Claimant's losses through forced sale and involuntary "gift" are compensable. Toshi Shimomaye, ante, p. 1; Akira Hirata, ante, p. 32; George Tsuda, ante, p. 90; Kenichi Fujioka, ante, p. 17 4. With respect to the claim of loss from the gift of the dog, the sole evidence offered in support of the allegation is: "I tried to sell all the * • * items, except * * * the dog"; further, "I couldn!t take the dog to the relocation center * * * so, rather than sell it to a stranger, I gave it to the children of a. neighbor who were fond of the dog and I felt they would take good care of it." Since this evidence does not exclude, as a reasonable inference, the possibility that claimant could have sold the dog for its then fair value and thus have a.voided loss from its disposition, it is clear that the allegation is not established. It follows, therefore, that this portion of the claim must be ·denied. Cf. Nizo Okano, ante, p. 41; Yoshiharu S. Katagihara, ante, p. 99; see, also, Kinji.ro -and Take Nagamine, ante, p. 78. As for the silverware, the loss, insofar as it relates to claimant's half-interest therein, is compensable. Akiko Yagi, ante, p. 11. While the facts here differ somewhat from those in the Yagi case, the principle of the latter

~:

...

311

is nevertheless applicable since the situation giving rise to the loss-namely, the storage of claimant's property in an unsafe place by an agent during his. enforced. ab-sence--would not have arisen but for claimant's evacua-tion. With regard to claimant's wife's half-interest in the silverware, the question presented is, of course, "causation"; more specifically, whether the loss involved was a reasonably foreseeable consequence of her evacua-tion "in the usual, ordinary, and experienced course of events; a result * * * which might reasonably have been anticipated or expected." Seiji Bando, ante, p. 68; cf. N oboru Sumi, ante, p. 225. Since it obviously was to have been anticipated that evacuees would have difficulty in caring for their property during the resettlement period and be forced to resort to makeshift arrangements such as those here involved with resultap.t loss, it is plain that the question posed must be answered in the affirmative. It follows, therefore, that the loss of claimant's wife's half-interest in the silverware is likewise compensable. Cf. Fusataro Isozaki, ante, p. 193.

"C-Ompensability" being thus resolved, there remains for consideration the real issue in the case--"eligibility," a matter which must be determined separately with re-spect to both claimant and his wife since community property is involved. See Fumiyo Kojima, ante, p. 209; Ryoko Takayama, ante, p. 263; cf. Tokutaro Hata, ante, p. 21. The precise· nature of the question presented is, of course, clear. Section 1 of the Statute specifically provides that a claim, to be statutorily cognizable, must be by "a person of Japanese ancestry." As appears from the findings of fact, cla4man t is Japanese of the quarter .. blood only and his wife is of Caucasian descent. Despite these facts, both were evacuated. Plainly, then, a prob-lem in statutory construction is posed.

That claimant-an individual of "mixed-blood," to use the terminology of the Western Defense Command (Final Report, infra, pp. 145-147)-qualifies as "a person of Japa.nese ancestry" under the Statute is irrefragable.

312

As appears from General DeWitt's Final Report Japa-nese Evacuation from the West Coast 1942 (GPO 1943), the meaning of the term "Japanese ancestry" as used in the Exclusion Orders is clear and admits Qf no dispute. Thus, the "Glossary of Terms" contained in the Report states (p. 514) : "Japanese Ancestry-Any person who has a Japanese ancestor regardless of degree, is consid-ered a person of Japanese ancestry." [Emphasis sup-plied.] The Report also reveals the effect of this definition. "Included among the evacuees," it states {p. 145), "were persons who were only part Japanese, some with as little as one-sixteenth Japanese blood,· others who, prior to evacuation, were unaware of their Japanese ancestry • * • ." Since in the evacuation lexicon, then, Japanese lineage in any degree whatsoever sufficed to make an individual "a person of Japanese ancestry," it is clear that claimant comes within this category. It is true, of course, that on July 8, 1942-approximately 2 months after claimant's entry into the Assembly Center.-Western Defense Command instituted a program permit-ting "mixed-blood" individuals to apply for exemption from evacuation and for permission to return to the evacuated zone.1 Exemptions were restricted, however,

1 The program-known as the "maed-marriage policy" and appli-cable to both "mixed-marriage families" (miscegenate unions with progeny) and "mixed-blood individuals" (persons 50% or less Jap-anese )-was adopted because of the cllffl.cultles created in the Assem-bly Centers by the cultural conflicts between the Japanese and misce-genate groups, the non-Japanese members of which were Caucasian, Chinese, Filipino, Korean, Eskimo, ects. Cf. Final Report, p. 145. Un-der its terms, "mixed-marriage fam111es" and "mixed-blood individ-uals" were classified under ditterent categories. Thus, famllles in which the head of the household (father, mother of children by a Japanese father who had died or was separated from the family, or foster parent) was a Caucasian citizen of the United States, also fam· llies in which the head of the household was a "mixed-blood individ-ual" who was a citizen of the United States and in which the family background had been Caucasian, were made eligible tor exemption from evacuation and return to the evacuated areas. Similarly, "mixed-blood individuals" without familles, t. e., adults and emancipated chil·

313 insofar as here pertinent, to: "Mixed-blood (one-half Japanese or less) individuals, citizens of the United States or of friendly nations, ~hose backgrounds have been Caucasian." Final Report, supra, p. 145. Since claimant was a citizen of Japan, it is plain that not only was he required t6 go to the Assembly Center but, futher, he clearly was ineligible for exemptjon from evacuation. Irrefutably, therefore, claimant was "a. person of Japanese ancestry" within the Military's construction of the term. Since the statutory phrase is modeled upon the Military's usage under the evacuation program, it follows that claim-ant meet the "Japanese ancestry" requirement of the Statute.

While claimant's "Japanese ancestry," then offers no difficulty, the problem presented with respect to his wife-non-J.apanese member of a "mixed-marriage family," i. e., s; miscegenate union with progeny~bviously is of different character. Since, as already seen, claimant's wife was of Caucasian descent and had no Japanese ancestor, it is clear that she does not cQme within the Western Def~nse Command's definition of the term "Japanese ancestry." Nor, for that matter, does she come within the Military's definition of the term "evacuee." This is apparent from the fact that the Final Report, S'lf(pra (p. 513), specifically defines "evacuee" as: "A person of Japanese ancestry excluded from Military Area No. 1 and the California portion of Military rArea No. 2, by proclamation of the Command-ing General Western Defense Command.'' The fact re-dren, who were citizens of the United States and had Caucasian back. grounds were likewise made eligible for release from the .Assembly Centers and return to their home. All other "mixed·murriage fam· illes" and "mi:r:ed·blood individuals" were sent to Relocation Centers to be relocated in the discretion of WRA. Cf. op. cit., loo. cit. The original policy was enlarged on August 19, 1942, to include among the groups eligible for residence in the evacuated areas families in which the head of the household was a citizen.of a friendly nation (Filipino, Chinese, Mexican, etc.), and it was later further amplified by add!· tional amendments. Ct. Final Report, pp. 145-146.

.··:-y,~:.~~~-mains, however, that claimant's wife, like cl~an, as evacuated. Indeed, and as appears from the finding,tot · fact, she was confined at the Relocation Center for an even longer period then claimant himself. 1\foreover.~~ that her evacuation was r~al in every respect and thJ· her status was identical with that of any other evacuee is conclusiyely shown by the WRA records. Thus, the latter reveal that her right to leave the Center for any·_ purpose whatsoever, even to obtain medical treatment· and hospitalization for her baby, was restricted and re:,:: quired the issuance of a special travel permit. The WRA · file likewise reveals that like any other evacuee she hatf to file an Application for Leave Clearance and that such· application had to be approved by the FBI and the various"". military intelligence agencies before she could become eligible for leave. Again, following the approval and al-lowance of her clearance application, a matter entailing~'. considerable delay, like any other evacuee she had to file : an Application for Indefinite Leave. The WRA file·-:_ further <;liscloses_that after the granting of indefinite leave'~ and her return to Los Angeles she still continued under..,. WRA supervision and had to report any change of ad·). dress.2 Obviously, these facts establish "evacuee" ~tus '-~

1 As appears from the Final Report, pp. 241-242, the restrictions~-,~ posed upon evacuees at Relocation Centers stemmed directly from,''=" Executive Order No. 9066, implemented by Public Proclamation No. ·s .. with respect to the six War Relocation Centers established In the .: Western Defense Command area and by Public Proclamation WD: 1 ir of the Secretary of War with respect to the four Relocation Centers : outside the Western Defense Command. Violation of the restrictions· : . subjected the residents of the centers to the penalties imposed by the ·' .. Act of March .21, 1942 (Public Law 503, 77th Cong.). Since the re- · strictions were of general application, claimant's wife was subject to · · .. : the penalties provided by law for any violation the same as any other · evacuee. Also, in this connection, and as further evidence of claim-ant's wife's position, it is pertinent to point out that both the J'oint Board and the Office of the Provost Marshal General expressly condi-tioned their approval o:f her application for leave clearance with the proviso: "This individual may not be employed in plants and facilities important to the war effort." The reason assigned was the fact that her husband was of Eurasian ancestry and a Japanese citizen.

315

·-and, by necessary implication, recognition by the Military of a form of "constructive" Japanese ancestry.

The matter has still further and even· more compelling aspects, however. As appears from the findings of fact, claimant and his family, i. e., his wife and child, were evacuated on May 10, 1942. Under the policy then in force, the sole exemptions permissible under the Exclusion Orders were those specified in paragraphs (e) and (f) of Public Proclamation No. 5, namely, cases involving pa-tients confined in hospitals or elsewhere too ill to be moved without danger to life, inn.iates of orphanages, .and the totally deaf, dumb, or blind. Except for these three spe-cific groups, all persons possessed of Japanese blood, ir-respective of age or lineal degree, were subject to the Exclusion Orders.8 As for the problem presented by children of "mixed-marriage families," the solution adopted was extension to the non-Japanese parent of an "election" to accompany his or her· part-Japanese child into the Assembly Center,' or else be separated from him.5

• As to the reasons for the exclusion en maaae-1. e., total removal of the entire Jnpanese community-see .Final J!,eport, pp. 7-19, 105-106,

· · 146, and WRA-A Story of Human Oonaervation, pp. 7-14, 111, 126-131, 180. As appears from these sources, the uprooting of the entire community was due to several factors, including not only military necessity but also the further considerations of protection against vigilantism and preventfon of local incidents. As for the treatment ot the three exempted classes, see Kofuaa Kashiwagi, ante, p. 270.

' The extension of the "election" was due to the fact that the basic principle applied in the execution of the evacuation plan was the preservatlo:µ ot the family unit. As stated in the Final Report (p. 77) : ''The Army was faced with the problem of designing a new type of civilian evacuation which would accomplish the mission in a truly American way • • •. In certain foreign countries the evacuation of the civilian population had proceeded as follows : First, dangerous adult males and females-those suspected of subversive _activities-were removed to internment camps ; and second, all other males of military age were sent to special labor camps. Women and children were often separated from the remainder of the family. This method removes. the normal economic support of the family and forces it to dissipate its resources. This In turn creates a community problem of dependency, and disrupts the entire organization of the family." Ct. id., p. 94. To avoid such social dislocation, the evacuation was

See footnote 3 on p. 316. 391156-56--22

316 <*i

In view of the nature of the "election," it is pa.teni ~~ the term represents a mere euphemism and that in actual - .-~.;:-!?>'~~At . ·

fact there was no choice. Obviously, the compulsive . force of the blood tie would inevitably prescribe avoid-

ance of separation of parent and child and compel the non-Japanese parent to undergo evacuation. The effect, therefore, was precisely as if the Exclusion Order was di-rected against the parent himself. Moreover, the matter has a further aspect arising out of the manner in which the so-called "election" was effected. Before a non-Jap-anese parent could be permitted to enter an Assembly Center with his or her part-Japanese child, such parent was required to execute a special form. known as WDC Form PM-7 and entitled "Request and Waiver of Non-Excluded Person." By the .terms of this form, the appli-cant requested leave to accompany the members of his or her family through all stages of the evacuation "in all respects as if he or she were a person of Japanese ancestry,'' agreed to conform to all rules, regulations, and orders "in all respects as if I were a person of Japanese ancestry," and waived the right·to leave the Assembly and Relocation Centers except upon written authori~ation from the Mili-tary or WR.A. The import of these provisions is obvious. In the eyes of the Military, a non-Japanese parent who conducted entirely 1n terms ot "family" and with total emphasis on preservation of the family unit. Thus, the Exclusion Orders and accompanying Instructions both ·explicitly stressed the family aspect, requiring "a responsible manner of each family" to report at the Civil Control Station a few days before evacuation for instructions. Id., pp. 97-100. Registration was on a :family basis, special Social Data Registration Forms being prepared for the :family as a whole. I ti,., 118-122, 353-854. Evacuees were assigned :family numbers. Ibid.

• Where a non-Japanese mother was unable to accompany her part-Japanese child, the child was sent to the Assembly Center with its lapanese father or other adult relatives o:f Japanese ancestry. In the event there was no father or adult Japanese relative, the policy ap-parently was to take the child and place lt in an institution such as the Salvation Army Japanese Home in San Francisco or the Southern Calitornia Japanese Children's Home ln Los Angeles, the institution serving as the equivalent of an Assembly Center, and later transfer it to the Children's Center at 'Manzanar, Calitornla.

317 executed the form and entered an assembly center with his part-J-apanese child became, for purposes evacuation, "a person of Japanese ancestry.'' . .

The significance of the foregoing with respect to the issue here presented is readily apparent. The rule, as we understand it, is that statutory language designating the recipients of rights of claim against the United States, substantially Qonferred by the Statute on account of past Government action, must be strictly construed against the ben~ficiaries of the Act,8 an exception being made where, taken alone, it seems to fail quite to cover the entire class clearly within its intended coverage. In the latter event, the language may be construed as descriptive of the entire intended class, irrespective of its customary meaning. United States v. Northwestern Erpress Company, 164 U.S. 686. Compare Buchanan v. Patterson, 190 U.S. 353; Silver v. Ladd, 74 U.S. (7 Wall.) 219; Ramsey v. Tacoma Land Company, 196 U. S. 360, 362.' This being the case, the right of claimant's wife to ~ompensation under the

• See e. g., Klamath Indiana v. United States, 296 U. S. 244, 250. Because of the sovereign immunity of the United States from suit, the

· · same rule applies to limtt the jurisdlctlon of courts to entertain actions against the United States, even where a right of action would plainly exist against an individual. See United States v. Sherwood;, 812 U. S. 584, and cases there cited. As pointed out ln the adjudication of the claim of Mary Sogawa, ante, p. 126, the Congress, ln prescribing that the claim ln question be determined ''according to law" imposed a "duty upon the Attorney General" to apply the same rules of interpre-tation that a Federal court would apply in like circumstances.

' It ls unnecessary to decide whether or not the instant claim may be analogized to a suit for just compensation for the taking of private property for public use. Cf. George M. KaicagucM, ante, p. 14. It ls appropriate to note, however, that were lt ·to be so analogized, the constitutional or statutory duty to pay just compensation would re-quire liberal construction ·1n order to accomplish that end. Becker Steel Co. v. Cumminga, 296 U. S. 74; cf. Behn, Meyer c! Co. v. Miller, 266 U. S. 457. Similarly, where the Government has seized property as a matter of right and, by force of the Constitution -or a statute, has assumed a role similar to that of a trustee with respect to the pro-ceeds, a statute giving a right to claim such proceeds ls usually deemed "highly remedial and should be liberally construed to effect the pur-pose of Congress and to give remedy in all cases intended to be cov-

318 . '4: -.~.~ ~~ ~ ~~ ~ ~

instant Statute is scarcely open to doubt. flainly, she ,/ was one _of "the victims of the forced relocation," the "ap-"i"\ proximately 120,000 persons involved in the relocation · move." (H. Rept. 732, 80th Cong., 1st sess., pp. 4, 5.) . As· pointed out in the case of Fumiyo Kojima, ubi W'f'Ta, the Congress was aware that the usual loss made compensable· by the Act resulted from the evacuation of the entire family in the sense that it could have been avoided if any . member had been permitted to remain behind to care for~ the property. Had claimant's wife had a real choice~·:.· therefore, undoubtedly the case would be different. Be-·· cause she did not have such choice, however, and was\ forced by the order excluding her part-Japanese child to<:_: accept quasi-Japanese ancestry status and become! "vie-~t., tun of the forced relocation," she comes within the scope ·· ':?: of intended statutory coverage and clearly qualifies as a · · ·.: / beneficiary under the Statute. As already seen, the stat-·},:; u tory use of the term "Japanese ancestry" is predicated ·:c :{ upon that of the Military in its effectuation of the evacu-,~) ation program.8 As likewise seen, in the eyes of the Mil-:~~ .. ~-. . ~~.:;

ered." Mmer v. Robert8on, 266 U.S. 243,248. Accord, United Btalea ·-~! v. Pail,elford, 9 Wall 581; United StateB v. Anderson, 9 Wall. 56. In · ' view of the availability ot the long-established exception mentioned in the text, however, lt ls unnecessary to determine whether these cases are applicable under the Evacuation Claims Act. Nor is there need, 1n light of the exception, to consider the effect of other relatively recent decisions which seem to indicate a disposition on the part of the Supreme Court to relax the general rule of strict construction, at least to the extent that lt rests upon the doctrine of sovereign lmmU· nlty. See, e. g., Keifer cE Keifer v. Reconatruction Finance Corp., 306 U.S. 881; Canadian A'Viator, Ltd. v. United StateB, 824 U.S. 215; Amer-,can Stevedore,, Ino. v. Porel'lo, 830 U. S. 446; United State, v. Aetna Surety Oo., 838 U. S. 366. Cf. Johansen v. United Btatea, 843 U. S. 427, and note, also, Sutherland on Statutory Oonatruction, Sd ed. (Horack), VoL 8, p. 184 et seq. • The term ls, of course, intended to reach the evacuated family units and to discharge the moral obligation owed them by the United States because of "the disproportionate financial burden that the Government's war measures had thrust upon [them]." Fumiyo Ko-jima, text, BUpra. It is manifest that there ls no valid distinction be-tween the instant case and others upon moral grounds and, if the problem had been raised, it ls not likely that diverse local laws as to

319

·:Ii -itary, claimant's wife, by executing the prescribed "Re quest and Waiver" form and entering the Assembly Center with her part-Japanese child, became, for purposes of evacuation and continued exclusion, "a person of Japanese ancestry," a status she was unable voluntarily to change once it was assumed. Necessarily, therefore, claimant's wife qualifies as an excluded "person of Japanese ancestry'' within the intendment of the Statute.

Claimant and his wife both being jurisdictionally eligi-ble, and the husband having control an4 management of the community personalty under California law and being proper party claimant therefor, this claim binds the en-tire interest o{ the marital community in the subject property. Tokutaro Hata, ubi supra. th~ nature and division of property owned within such family groups would have been intended to control the amount of compensation pay-able in such cases where, as here, the policy implications of the proscriptions of Section 2 (b) Qf the Act are in no way involved. Cf. Verm~l11a-Broum Co. v. Oonnen, 835 U. S. 877, 888.