No. 70. Argued October 12, 1944. -- Decided December
1. The War Relocation Authority, whose power over
persons evacuated from military areas derives from Executive Order
No. 9066, which was ratified and confirmed by the Act of March
21, 1942, was without authority, express or implied, to subject
to its leave procedure a concededly loyal and law-abiding citizen
of the United States. P. 297.
2. Wartime measures are to be interpreted as intending
the greatest possible accommodation between the Constitutional
liberties of the citizen and the exigencies of war. P. 300.
3. The sole purpose of the Act of March 21, 1942
and Executive Orders Nos. 9066 and 9102 was the protection of
the war effort against espionage and sabotage. P. 300.
4. Power to detain a concededly loyal citizen may
not be implied from the power to protect the war effort against
espionage and sabotage. P. 302.
5. The power to detain a concededly loyal citizen
or to grant him a conditional release can not be implied as a
useful or convenient step in the evacuation program. P. 302.
6. The Act of March 21, 1942 and Executive Orders
Nos. 9066 and 9102 afford no basis for keeping loyal evacuees
of Japanese ancestry in custody on the ground of community hostility.
7. The District Court having acquired jurisdiction
upon an application for habeas corpus, and there being within
the district one responsible for the detention and who would be
an appropriate respondent, the cause was not rendered moot by
the removal of the applicant to another circuit pending appeal
from a denial of the writ, and the District Court has jurisdiction
to issue the writ. United States v. Crystal, 319 U.S. 755, distinguished.
On appeal from an order of the District Court denying
a writ of habeas corpus, the Circuit Court of Appeals certified
questions to this Court, which, under Judicial Code S. 239, ordered
the entire record sent up.
Mr. James C. Purcell, with whom Mr. Wayne M. Collins
was on the brief, for Mitsuye Endo.
Solicitor General Fahy, with whom Assistant Attorney
General Wechsler and Messrs. Edward J. Ennis, Ralph F. Fuchs,
and John L. Burling were on the brief, for the United States.
Mr. Wayne M. Collins filed a brief on behalf of the
Northern California Branch of the American Civil Liberties Union;
and Messrs. Osmond K. Fraenkel, Edwin Borchard, Charles Horsky,
Arthur DeHon Hill, Winthrop Wadleigh, Harold Evans, William Draper
Lewis, and Thomas Raeburn White on behalf of the American Civil
Liberties Union, as amici curiae, in support of Mitsuye Endo.
Mr. Justice Douglas delivered the opinion of the
This case comes here on a certificate of the Court
of Appeals for the Ninth Circuit, certifying to us questions of
law upon which it desires instructions for the decision of the
case. Judicial Code S. 239, 28 U. S. C. S. 346. Acting under
that section we ordered the entire record to be certified to this
Court so that we might proceed to a decision, as if the case had
been brought here by appeal.
Mitsuye Endo, hereinafter designated as the appellant,
is an American citizen of Japanese ancestry. She was evacuated
from Sacramento, California, in 1942, pursuant to certain military
orders which we will presently discuss, and was removed to the
Tule Lake War Relocation Center located at Newell, Modoc County,
California. In July, 1942, she filed a petition for a writ of
habeas corpus in the District Court of the United States for the
Northern District of California, asking that she be discharged
and restored to liberty. That petition was denied by the District
Court in July, 1943, and an appeal was perfected to the Circuit
Court of Appeals in August, 1943. Shortly thereafter appellant
was transferred from the Tule Lake Relocation Center to the Central
Utah Relocation Center located at Topaz, Utah, where she is presently
detained. The certificate of questions of law was filed here
on April 22, 1944, and on May 8, 1944, we ordered the entire record
to be certified to this Court. It does not appear that any respondent
was ever served with process or appeared in the proceedings.
But the United States Attorney for the Northern District of California
argued before the District Court that the petition should not
be granted. And the Solicitor General argued the case here.
The history of the evacuation of Japanese aliens
and citizens of Japanese ancestry from the Pacific coastal regions,
following the Japanese attack on our Naval Base at Pearl Harbor
on December 7, 1941, and the declaration of war against Japan
on December 8, 1941 (55 Stat. 795), has been reviewed in Hirabayashi
v. United States, 320 U.S. 81. It need be only briefly recapitulated
here. On February 19, 1942, the President promulgated Executive
Order No. 9066, 7 Fed. Reg. 1407. It recited that ''the successful
prosecution of the war requires every possible protection against
espionage and against sabotage to national-defense material, national-defense
premises, and national-defense utilities, as defined in Section
4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act
of November 30, 1940, 54 Stat. 1220, and the Act of August 21,
1941, 55 Stat. 655 (U. S. C., Title 50, Sec. 104).''
And it authorized and directed
''the Secretary of War, and the Military Commanders
whom he may from time to time designate, whenever he or any designated
Commander deems such action necessary or desirable, to prescribe
military areas in such places and of such extent as he or the
appropriate Military Commander may determine, from which any or
all persons may be excluded, and with respect to which, the right
of any person to enter, remain in, or leave shall be subject to
whatever restrictions the Secretary of War or the appropriate
Military Commander may impose in his discretion. The Secretary
of War is hereby authorized to provide for residents of any such
area who are excluded therefrom, such transportation, food, shelter,
and other accommodations as may be necessary, in the judgment
of the Secretary of War or the said Military Commander, and until
other arrangements are made, to accomplish the purpose of this
Lt. General J. L. De Witt, Military Commander of
the Western Defense Command, was designated to carry out the duties
prescribed by that Executive Order. On March 2, 1942, he promulgated
Public Proclamation No. 1 (7 Fed. Reg. 2320) which recited that
the entire Pacific Coast of the United States
''by its geographical location is particularly subject
to attack, to attempted invasion by the armed forces of nations
with which the United States is now at war, and, in connection
therewith, is subject to espionage and acts of sabotage, thereby
requiring the adoption of military measures necessary to establish
safeguards against such enemy operations.''
It designated certain Military Areas and Zones in
the Western Defense Command and announced that certain persons
might subsequently be excluded from these areas. On March 16,
1942, General De Witt promulgated Public Proclamation No. 2 which
contained similar recitals and designated further Military Areas
and Zones. 7 Fed. Reg. 2405.
On March 18, 1942, the President promulgated Executive
Order No. 9102 which established in the Office for Emergency Management
of the Executive Office of the President the War Relocation Authority.
7 Fed. Reg. 2165. It recited that it was made ''in order to
provide for the removal from designated areas of persons whose
removal is necessary in the interests of national security.''
It provided for a Director and authorized and directed him to
''formulate and effectuate a program for the removal, from the
areas designated from time to time by the Secretary of War or
appropriate military commander under the authority of Executive
Order No. 9066 of February 19, 1942, of the persons or classes
of persons designated under such Executive Order, and for their
relocation, maintenance, and supervision.''
The Director was given the authority, among other
things, to prescribe regulations necessary or desirable to promote
effective execution of the program.
Congress shortly enacted legislation which, as we
pointed out in Hirabayashi v. United States, supra, ratified and
confirmed Executive Order No. 9066. See 320 U.S. pp. 87-91.
It did so by the Act of March 21, 1942 (56 Stat. 173) which provided:
''That whoever shall enter, remain in, leave, or
commit any act in any military area or military zone prescribed,
under the authority of an Executive order of the President, by
the Secretary of War, or by any military commander designated
by the Secretary of War, contrary to the restrictions applicable
to any such area or zone or contrary to the order of the Secretary
of War or any such military commander, shall, if it appears that
he knew or should have known of the existence and extent of the
restrictions or order and that his act was in violation thereof,
be guilty of a misdemeanor and upon conviction shall be liable
to a fine of not to exceed $5,000 or to imprisonment for not more
than one year, or both, for each offense.''
Beginning on March 24, 1942, a series of 108 Civilian
Exclusion Orders were issued by General De Witt pursuant to Public
Proclamation Nos. 1 and 2. Appellant's exclusion was effected
by Civilian Exclusion Order No. 52, dated May 7, 1942. It ordered
that ''all persons of Japanese ancestry, both alien and non-alien''
be excluded from Sacramento, California, beginning at noon on
May 16, 1942. Appellant was evacuated to the Sacramento Assembly
Center on May 15, 1942, and was transferred from there to the
Tule Lake Relocation Center on June 19, 1942.
On May 19, 1942, General De Witt promulgated Civilian
Restrictive Order No. 1 (8 Fed. Reg. 982) and on June 27, 1942,
Public Proclamation No. 8. 7 Fed. Reg. 8346. These prohibited
evacuees from leaving Assembly Centers or Relocation Centers except
pursuant to an authorization from General De Witt's headquarters.
Public Proclamation No. 8 recited that ''the present situation
within these military areas requires as a matter of military necessity''
that the evacuees be removed to ''Relocation Centers for their
relocation, maintenance and supervision,'' that those Relocation
Centers be designated as War Relocation Project Areas, and that
restrictions on the rights of the evacuees to enter, remain in,
or leave such areas be promulgated. These restrictions were applicable
to the Relocation Centers within the Western Defense Command and
included both of those in which appellant has been confined--Tule
Lake Relocation Center at Newell, California and Central Utah
Relocation Center at Topaz, Utah. And Public Proclamation No.
8 purported to make any person who was subject to its provisions
and who failed to conform to it liable to the penalties prescribed
by the Act of March 21, 1942.
By letter of August 11, 1942, General De Witt authorized
the War Relocation Authority to issue permits for persons to leave
these areas. By virtue of that delegation and the authority conferred
by Executive Order No. 9102, the War Relocation Authority was
given control over the ingress and egress of evacuees from the
Relocation Centers where Mitsuye Endo was confined.
The program of the War Relocation Authority is said
to have three main features: (1) the maintenance of Relocation
Centers as interim places of residence for evacuees; (2) the segregation
of loyal from disloyal evacuees; (3) the continued detention of
the disloyal and so far as possible the relocation of the loyal
in selected communities. In connection with the latter phase
of its work the War Relocation Authority established a procedure
for obtaining leave from Relocation Centers. That procedure,
so far as indefinite leave is concerned, presently provides as
Application for leave clearance is required. An
investigation of the applicant is made for the purpose of ascertaining
''the probable effect upon the war program and upon the public
peace and security of issuing indefinite leave'' to the applicant.
The grant of leave clearance does not authorize departure from
the Relocation Center. Application for indefinite leave must
also be made. Indefinite leave may be granted under 14 specified
conditions. For example, it may be granted (1) where the applicant
proposes to accept an employment offer or an offer of support
that has been investigated and approved by the Authority; or (2)
where the applicant does not intend to work but has ''adequate
financial resources to take care of himself'' and a Relocation
Officer has investigated and approved ''public sentiment at his
proposed destination,'' or (3) where the applicant has made arrangements
to live at a hotel or in a private home approved by a Relocation
Officer while arranging for employment; or (4) where the applicant
proposes to accept employment by a federal or local governmental
agency; or (5) where the applicant is going to live with designated
classes of relatives.
But even if an applicant meets those requirements,
no leave will issue when the proposed place of residence or employment
is within a locality where it has been ascertained that ''community
sentiment is unfavorable'' or when the applicant plans to go to
an area which has been closed by the Authority to the issuance
of indefinite leave. Nor will such leave issue if the area where
the applicant plans to reside or work is one which has not been
cleared for relocation. Moreover, the applicant agrees to give
the Authority prompt notice of any change of employment or residence.
And the indefinite leave which is granted does not permit entry
into a prohibited military area, including those from which these
people were evacuated.
Mitsuye Endo made application for leave clearance
on February 19, 1943, after the petition was filed in the District
Court. Leave clearance was granted her on August 16, 1943. But
she made no application for indefinite leave.
Her petition for a writ of habeas corpus alleges
that she is a loyal and law-abiding citizen of the United States,
that no charge has been made against her, that she is being unlawfully
detained, and that she is confined in the Relocation Center under
armed guard and held there against her will.
It is conceded by the Department of Justice and by
the War Relocation Authority that appellant is a loyal and law-abiding
citizen. They make no claim that she is detained on any charge
or that she is even suspected of disloyalty. Moreover, they do
not contend that she may be held any longer in the Relocation
Center. They concede that it is beyond the power of the War Relocation
Authority to detain citizens against whom no charges of disloyalty
or subversiveness have been made for a period longer than that
necessary to separate the loyal from the disloyal and to provide
the necessary guidance for relocation. But they maintain that
detention for an additional period after leave clearance has been
granted is an essential step in the evacuation program. Reliance
for that conclusion is placed on the following circumstances.
When compulsory evacuation from the West Coast was
decided upon, plans for taking care of the evacuees after their
detention in the Assembly Centers, to which they were initially
removed, remained to be determined. On April 7, 1942, the Director
of the Authority held a conference in Salt Lake City with various
state and federal officials including the Governors of the intermountain
states. ''Strong opposition was expressed to any type of unsupervised
relocation and some of the Governors refused to be responsible
for maintenance of law and order unless evacuees brought into
their States were kept under constant military surveillance.''
Sen. Doc. No. 96, supra, note 7, p. 4. As stated by General
De Witt in his report to the Chief of Staff:
''Essentially, military necessity required only that
the Japanese population be removed from the coastal area and dispersed
in the interior, where the danger of action in concert during
any attempted enemy raids along the coast, or in advance thereof
as preparation for a full scale attack, would be eliminated.
That the evacuation program necessarily and ultimately developed
into one of complete Federal supervision, was due primarily to
the fact that the interior states would not accept an uncontrolled
Final Report, supra, note 2, pp. 43-44. The Authority
thereupon abandoned plans for assisting groups of evacuees in
private colonization and temporarily put to one side plans for
aiding the evacuees in obtaining private employment. As an alternative
the Authority ''concentrated on establishment of Government-operated
centers with sufficient capacity and facilities to accommodate
the entire evacuee population.'' Sen. Doc. No. 96, supra, note
7, p. 4. Accordingly, it undertook to care for the basic needs
of these people in the Relocation Centers, to promote as rapidly
as possible the permanent resettlement of as many as possible
in normal communities, and to provide indefinitely for those left
at the Relocation Centers. An effort was made to segregate the
loyal evacuees from the others. The leave program which we have
discussed was put into operation and the resettlement program
It is argued that such a planned and orderly relocation
was essential to the success of the evacuation program; that but
for such supervision there might have been a dangerously disorderly
migration of unwanted people to unprepared communities; that unsupervised
evacuation might have resulted in hardship and disorder; that
the success of the evacuation program was thought to require the
knowledge that the federal government was maintaining control
over the evacuated population except as the release of individuals
could be effected consistently with their own peace and well-being
and that of the nation; that although community hostility towards
the evacuees has diminished, it has not disappeared and the continuing
control of the Authority over the relocation process is essential
to the success of the evacuation program. It is argued that supervised
relocation, as the chosen method of terminating the evacuation,
is the final step in the entire process and is a consequence of
the first step taken. It is conceded that appellant's detention
pending compliance with the leave regulations is not directly
connected with the prevention of espionage and sabotage at the
present time. But it is argued that Executive Order No. 9102
confers power to make regulations necessary and proper for controlling
situations created by the exercise of the powers expressly conferred
for protection against espionage and sabotage. The leave regulations
are said to fall within that category.
First. We are of the view that Mitsuye Endo should
be given her liberty. In reaching that conclusion we do not come
to the underlying constitutional issues which have been argued.
For we conclude that, whatever power the War Relocation Authority
may have to detain other classes of citizens, it has no authority
to subject citizens who are concededly loyal to its leave procedure.
It should be noted at the outset that we do not have
here a question such as was presented in Ex parte Milligan, 4
Wall. 2, or in Ex parte Quirin, 317 U. S. 1, where the jurisdiction
of military tribunals to try persons according to the law of war
was challenged in habeas corpus proceedings. Mitsuye Endo is
detained by a civilian agency, the War Relocation Authority, not
by the military. Moreover, the evacuation program was not left
exclusively to the military; the Authority was given a large measure
of responsibility for its execution and Congress made its enforcement
subject to civil penalties by the Act of March 21, 1942. Accordingly,
no questions of military law are involved.
Such power of detention as the Authority has stems
from Executive Order No. 9066. That order is the source of the
authority delegated by General De Witt in his letter of August
11, 1942. And Executive Order No. 9102 which created the War
Relocation Authority purported to do no more than to implement
the program authorized by Executive Order No. 9066.
We approach the construction of Executive Order No.
9066 as we would approach the construction of legislation in this
field. That Executive Order must indeed be considered along with
the Act of March 21, 1942, which ratified and confirmed it (Hirabayashi
v. United States, supra, pp. 87-91) as the Order and the statute
together laid such basis as there is for participation by civil
agencies of the federal government in the evacuation program.
Broad powers frequently granted to the President or other executive
officers by Congress so that they may deal with the exigencies
of wartime problems have been sustained. And the Constitution
when it committed to the Executive and to Congress the exercise
of the war power necessarily gave them wide scope for the exercise
of judgment and discretion so that war might be waged effectively
and successfully. Hirabayashi v. United States, supra, p. 93.
At the same time, however, the Constitution is as specific in
its enumeration of many of the civil rights of the individual
as it is in its enumeration of the powers of his government.
Thus it has prescribed procedural safeguards surrounding the arrest,
detention and conviction of individuals. Some of these are contained
in the Sixth Amendment, compliance with which is essential if
convictions are to be sustained. Tot v. United States, 319 U.
S. 463. And the Fifth Amendment provides that no person shall
be deprived of liberty (as well as life or property) without due
process of law. Moreover, as a further safeguard against invasion
of the basic civil rights of the individual it is provided in
Art. I, S. 9 of the Constitution that ''The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may require it.''
See Ex parte Milligan, supra.
We mention these constitutional provisions not to
stir the constitutional issues which have been argued at the bar
but to indicate the approach which we think should be made to
an Act of Congress or an order of the Chief Executive that touches
the sensitive area of rights specifically guaranteed by the Constitution.
This Court has quite consistently given a narrower scope for
the operation of the presumption of constitutionality when legislation
appeared on its face to violate a specific prohibition of the
Constitution. We have likewise favored that interpretation of
legislation which gives it the greater chance of surviving the
test of constitutionality. Those analogies are suggestive here.
We must assume that the Chief Executive and members of Congress,
as well as the courts, are sensitive to and respectful of the
liberties of the citizen. In interpreting a wartime measure we
must assume that their purpose was to allow for the greatest possible
accommodation between those liberties and the exigencies of war.
We must assume, when asked to find implied powers in a grant
of legislative or executive authority, that the law makers intended
to place no greater restraint on the citizen than was clearly
and unmistakably indicated by the language they used.
The Act of March 21, 1942, was a war measure. The
House Report (H. Rep. No. 1906, 77th Cong., 2d Sess., p. 2) stated,
''The necessity for this legislation arose from the fact that
the safe conduct of the war requires the fullest possible protection
against either espionage or sabotage to national defense material,
national defense premises, and national defense utilities.''
That was the precise purpose of Executive Order No. 9066, for,
as we have seen, it gave as the reason for the exclusion of persons
from prescribed military areas the protection of such property
''against espionage and against sabotage.'' And Executive Order
No. 9102 which established the War Relocation Authority did so,
as we have noted, ''in order to provide for the removal from designated
areas of persons whose removal is necessary in the interests of
national security.'' The purpose and objective of the Act and
of these orders are plain. Their single aim was the protection
of the war effort against espionage and sabotage. It is in light
of that one objective that the powers conferred by the orders
must be construed.
Neither the Act nor the orders use the language of
detention. The Act says that no one shall ''enter, remain in,
leave, or commit any act'' in the prescribed military areas contrary
to the applicable restrictions. Executive Order No. 9066 subjects
the right of any person ''to enter, remain in, or leave'' those
prescribed areas to such restrictions as the military may impose.
And apart from those restrictions the Secretary of War is only
given authority to afford the evacuees ''transportation, food,
shelter, and other accommodations.'' Executive Order No. 9102
authorizes and directs the War Relocation Authority ''to formulate
and effectuate a program for the removal'' of the persons covered
by Executive Order No. 9066 from the prescribed military areas
and ''for their relocation, maintenance, and supervision.'' And
power is given the Authority to make regulations ''necessary or
desirable to promote effective execution of such program.'' Moreover,
unlike the case of curfew regulations (Hirabayashi v. United States,
supra), the legislative history of the Act of March 21, 1942,
is silent on detention. And that silence may have special significance
in view of the fact that detention in Relocation Centers was no
part of the original program of evacuation but developed later
to meet what seemed to the officials in charge to be mounting
hostility to the evacuees on the part of the communities where
they sought to go.
We do not mean to imply that detention in connection
with no phase of the evacuation program would be lawful. The
fact that the Act and the orders are silent on detention does
not of course mean that any power to detain is lacking. Some
such power might indeed be necessary to the successful operation
of the evacuation program. At least we may so assume. Moreover,
we may assume for the purposes of this case that initial detention
in Relocation Centers was authorized. But we stress the silence
of the legislative history and of the Act and the Executive Orders
on the power to detain to emphasize that any such authority which
exists must be implied. If there is to be the greatest possible
accommodation of the liberties of the citizen with this war measure,
any such implied power must be narrowly confined to the precise
purpose of the evacuation program.
A citizen who is concededly loyal presents no problem
of espionage or sabotage. Loyalty is a matter of the heart and
mind, not of race, creed, or color. He who is loyal is by definition
not a spy or a saboteur. When the power to detain is derived
from the power to protect the war effort against espionage and
sabotage, detention which has no relationship to that objective
Nor may the power to detain an admittedly loyal citizen
or to grant him a conditional release be implied as a useful or
convenient step in the evacuation program, whatever authority
might be implied in case of those whose loyalty was not conceded
or established. If we assume (as we do) that the original evacuation
was justified, its lawful character was derived from the fact
that it was an espionage and sabotage measure, not that there
was community hostility to this group of American citizens. The
evacuation program rested explicitly on the former ground not
on the latter as the underlying legislation shows. The authority
to detain a citizen or to grant him a conditional release as protection
against espionage or sabotage is exhausted at least when his loyalty
is conceded. If we held that the authority to detain continued
thereafter, we would transform an espionage or sabotage measure
into something else. That was not done by Executive Order No.
9066 or by the Act of March 21, 1942, which ratified it. What
they did not do we cannot do. Detention which furthered the campaign
against espionage and sabotage would be one thing. But detention
which has no relationship to that campaign is of a distinct character.
Community hostility even to loyal evacuees may have been (and
perhaps still is) a serious problem. But if authority for their
custody and supervision is to be sought on that ground, the Act
of March 21, 1942, Executive Order No. 9066, and Executive Order
No. 9102, offer no support. And none other is advanced. To read
them that broadly would be to assume that the Congress and the
President intended that this discriminatory action should be taken
against these people wholly on account of their ancestry even
though the government conceded their loyalty to this country.
We cannot make such an assumption. As the President has said
of these loyal citizens:
''Americans of Japanese ancestry, like those of many
other ancestries, have shown that they can, and want to, accept
our institutions and work loyally with the rest of us, making
their own valuable contribution to the national wealth and well-being.
In vindication of the very ideals for which we are fighting this
war it is important to us to maintain a high standard of fair,
considerate, and equal treatment for the people of this minority
as of all other minorities.'' Sen. Doc. No. 96, supra, note 7,
Mitsuye Endo is entitled to an unconditional release
by the War Relocation Authority.
Second. The question remains whether the District
Court has jurisdiction to grant the writ of habeas corpus because
of the fact that while the case was pending in the Circuit Court
of Appeals appellant was moved from the Tule Lake Relocation Center
in the Northern District of California where she was originally
detained to the Central Utah Relocation Center in a different
district and circuit.
That question is not colored by any purpose to effectuate
a removal in evasion of the habeas corpus proceedings. It appears
that appellant's removal to Utah was part of a general segregation
program involving many of these people and was in no way related
to this pending case. Moreover, there is no suggestion that there
is no one within the jurisdiction of the District Court who is
responsible for the detention of appellant and who would be an
appropriate respondent. We are indeed advised by the Acting Secretary
of the Interior that if the writ issues and is directed to the
Secretary of the Interior or any official of the War Relocation
Authority (including an assistant director whose office is at
San Francisco, which is in the jurisdiction of the District Court),
the corpus of appellant will be produced and the court's order
complied with in all respects. Thus it would seem that the case
is not moot.
In United States ex rel. Innes v. Crystal, 319 U.
S. 755, the relator challenged a judgment of court martial by
habeas corpus. The District Court denied his petition and the
Circuit Court of Appeals affirmed that order. After that decision
and before his petition for certiorari was filed here, he was
removed from the custody of the Army to a federal penitentiary
in a different district and circuit. The sole respondent was
the commanding officer. Only an order directed to the warden
of the penitentiary could effectuate his discharge and the warden
as well as the prisoner was outside the territorial jurisdiction
of the District Court. We therefore held the cause moot. There
is no comparable situation here.
The fact that no respondent was ever served with
process or appeared in the proceedings is not important. The
United States resists the issuance of a writ. A cause exists
in that state of the proceedings and an appeal lies from denial
of a writ without the appearance of a respondent. Ex parte Milligan,
supra, p. 112; Ex parte Quirin, 317 U. S. 1, 24.
Hence, so far as presently appears, the cause is
not moot and the District Court has jurisdiction to act unless
the physical presence of appellant in that district is essential.
We need not decide whether the presence of the person
detained within the territorial jurisdiction of the District Court
is prerequisite to filing a petition for a writ of habeas corpus.
See In re Boles, 48 F. 75; Ex parte Gouyet, 175 F. 230, 233;
United States v. Day, 50 F. 2d 816, 817;
United States v. Schlotfeldt, 136 F. 2d 935, 940.
But see Tippitt v. Wood, 140 F. 2d 689, 693. We only hold that
the District Court acquired jurisdiction in this case and that
the removal of Mitsuye Endo did not cause it to lose jurisdiction
where a person in whose custody she is remains within the district.
There are expressions in some of the cases which
indicate that the place of confinement must be within the court's
territorial jurisdiction in order to enable it to issue the writ.
See In re Boles, supra, p. 76; Ex parte Gouyet, supra; United
States v. Day, supra; United States v. Schlotfeldt, supra. But
we are of the view that the court may act if there is a respondent
within reach of its process who has custody of the petitioner.
As Judge Cooley stated in In the Matter of Samuel W. Jackson,
15 Mich. 417, 439-440:
''The important fact to be observed in regard to
the mode of procedure upon this writ is, that it is directed to,
and served upon, not the person confined, but his jailer. It
does not reach the former except through the latter. The officer
or person who serves it does not unbar the prison doors, and set
the prisoner free, but the court relieves him by compelling the
oppressor to release his constraint. The whole force of the writ
is spent upon the respondent;''
And see United States v. Davis, 5 Cranch C. C. 622,
Fed. Cas. No. 14,926; Ex parte Fong Yim, 134 F. 938; Ex parte
Ng Quong Ming, 135 F. 378, 379; Sanders v. Allen, 100 F. 2d 717,
719; Rivers v. Mitchell, 57 Ia. 193, 195, 10 N. W. 626; People
v. New York Asylum, 57 App. Div. 383, 384, 68 N. Y. S. 279; People
v. New York Asylum, 58 App. Div. 133, 134, 68 N. Y. S. 656. The
statute upon which the jurisdiction of the District Court in habeas
corpus proceedings rests (Rev. Stat. S. 752, 28 U. S. C. S. 452)
gives it power ''to grant writs of habeas corpus for the purpose
of an inquiry into the cause of restraint of liberty.'' That
objective may be in no way impaired or defeated by the removal
of the prisoner from the territorial jurisdiction of the District
Court. That end may be served and the decree of the court made
effective if a respondent who has custody of the prisoner is within
reach of the court's process even though the prisoner has been
removed from the district since the suit was begun.
The judgment is reversed and the cause is remanded
to the District Court for proceedings in conformity with this
MR. JUSTICE MURPHY, concurring.
I join in the opinion of the Court, but I am of the
view that detention in Relocation Centers of persons of Japanese
ancestry regardless of loyalty is not only unauthorized by Congress
or the Executive but is another example of the unconstitutional
resort to racism inherent in the entire evacuation program. As
stated more fully in my dissenting opinion in Korematsu v. United
States, ante, p. 233, racial discrimination of this nature bears
no reasonable relation to military necessity and is utterly foreign
to the ideals and traditions of the American people.
Moreover, the Court holds that Mitsuye Endo is entitled
to an unconditional release by the War Relocation Authority.
It appears that Miss Endo desires to return to Sacramento, California,
from which Public Proclamations Nos. 7 and 11, as well as Civilian
Exclusion Order No. 52, still exclude her. And it would seem
to me that the ''unconditional'' release to be given Miss Endo
necessarily implies ''the right to pass freely from state to state,''
including the right to move freely into California. Twining v.
New Jersey, 211 U. S. 78, 97; Crandall v. Nevada, 6 Wall. 35.
If, as I believe, the military orders excluding her from California
were invalid at the time they were issued, they are increasingly
objectionable at this late date, when the threat of invasion of
the Pacific Coast and the fears of sabotage and espionage have
greatly diminished. For the Government to suggest under these
circumstances that the presence of Japanese blood in a loyal American
citizen might be enough to warrant her exclusion from a place
where she would otherwise have a right to go is a position I cannot
MR. JUSTICE ROBERTS.
I concur in the result but I cannot agree with the
reasons stated in the opinion of the court for reaching that result.
As in Korematsu v. United States, ante, p. 214, the
court endeavors to avoid constitutional issues which are necessarily
involved. The opinion, at great length, attempts to show that
neither the executive nor the legislative arm of the Government
authorized the detention of the relator.
1. With respect to the executive, it is said that
none of the executive orders in question specifically referred
to detention and the court should not imply any authorization
of it. This seems to me to ignore patent facts. As the opinion
discloses, the executive branch of the Government not only was
aware of what was being done but in fact that which was done was
formulated in regulations and in a so-called handbook open to
the public. I had supposed that where thus overtly and avowedly
a department of the Government adopts a course of action under
a series of official regulations the presumption is that, in this
way, the department asserts its belief in the legality and validity
of what it is doing. I think it inadmissible to suggest that
some inferior public servant exceeded the authority granted by
executive order in this case. Such a basis of decision will render
easy the evasion of law and the violation of constitutional rights,
for when conduct is called in question the obvious response will
be that, however much the superior executive officials knew, understood,
and approved the conduct of their subordinates, those subordinates
in fact lacked a definite mandate so to act. It is to hide one's
head in the sand to assert that the detention of relator resulted
from an excess of authority by subordinate officials.
2. As the opinion states, the Act of March 21, 1942,
said nothing of detention or imprisonment, nor did Executive Order
No. 9066 of date February 19, 1942, but I cannot agree that when
Congress made appropriations to the Relocation Authority, having
before it the reports, the testimony at committee hearings, and
the full details of the procedure of the Relocation Authority
were exposed in Government publications, these appropriations
were not a ratification and an authorization of what was being
done. The cases cited in footnote No. 24 of the opinion do not
justify any such conclusion. The decision now adds an element
never before thought essential to congressional ratification,
namely, that if Congress is to ratify by appropriation any part
of the programme of an executive agency the bill must include
a specific item referring to that portion of the programme. In
other words, the court will not assume that Congress ratified
the procedure of the authorities in this case in the absence of
some such item as this in the appropriation bill: --''For the
administration of the conditional release and parole programme
in force in relocation centers.'' In the light of the knowledge
Congress had as to the details of the programme, I think the court
is unjustified in straining to conclude that Congress did not
mean to ratify what was being done.
3. I conclude, therefore, that the court is squarely
faced with a serious constitutional question, -- whether the relator's
detention violated the guarantees of the Bill of Rights of the
federal Constitution and especially the guarantee of due process
of law. There can be but one answer to that question. An admittedly
loyal citizen has been deprived of her liberty for a period of
years. Under the Constitution she should be free to come and
go as she pleases. Instead, her liberty of motion and other innocent
activities have been prohibited and conditioned. She should be