Stainback v. Mo Hock Ke Lok Po
Decided on Mar. 14, 1949; 336 US 368


A. Issues Discussed: Judicial review

B. Legal Question Presented:

Did Congress intend that Judicial Code 266, which provide for the review of cases by a special three-judge court, apply in the Territory of Hawaii under circumstances that would require its application in a similar suit in a state?


A. Background:

This case groups cases No 52 and No 474, under the same heading. The parties are the same in both cases. Case No 52 was brought to the US Supreme Court directly by the provision in Judicial Code 266; and case 474 was granted a writ of certiorari.

Respondents are "Chinese School Associations, a Chinese school, all giving instruction in Chinese, and a teacher of Chinese in Chinese language schools. After December 7, 1941, these schools closed and have not reopened. Prior to that date they had more than 2,000 pupils, several hundred of whom were in the first and second grade, and numerous teachers. Under Judicial Code 266 they sought an injunction against officers of the Territory of Hawaii charged by law with the administration of an Act of the Territory 'Regulating the Teaching of Foreign Languages to Children,' from enforcing it in any particular against the teaching of foreign languages to the respondents' pupils. The Act was grounded on a legislative finding 'that the study and persistent use of foreign languages by children of average intelligence in their early and formative years definitely detract from their ability properly to understand and assimilate their normal studies in the English language...'

The complaint alleged that in violation of the Fifth Amendment the Act deprived plaintiff schools of the right to manage their property by contracting with instructors and parents for the teaching of Chinese, and the plaintiff teacher of Chinese of his right to follow his occupation..."

A three-judge district court, called pursuant to Judicial Code 266, granted an injunction against enforcement of the Hawaiian Act. However "the minutes entries of proceedings and trial suggests that a special district court under Judicial Code 266 cannot be called for Hawaii."

On certiorari, the US Supreme Court addressed the question of applicability of Judicial Code 266, and did not address the merit of the case. The Court dismissed the appeal in No 52 for lack of jurisdiction and reversed the judgment in No 474 and remanded the case to the district court with instruction to dismiss the complaint.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
No. 52: Messrs. N. Wai Yuen Char, of Honolulu, T.H., and A. L. Wirin, of Los Angeles, Cal., for appellees. No. 474: Messrs. A. L. Wirin and Fred Okrano, both of Los Angeles, Cal., for respondents. No. 52: Mr. Thomas W. Flynn, Jr., of Honolulu. T.H., for appellants. No. 474: Mr. C. Nils Tavares, of Honolulu, T.H., for petitioners.

This case regroups 2 cases: Nos 52 and 474. However, unlike other cases where the US Supreme court regroups cases that have a common issue but different parties, this case has the same issue and the same parties. Case No. 52 was in the supreme Court on appeal and case No.474, was on certiorari.

1) Case No.52: "Hawaii is still a territory but a territory in which the Constitution and laws of the United States generally are applicable... [The] jurisdiction of this Court on appeal depends upon whether or not a special three-judge court was properly called and not upon the power of this Court to review under Judicial Code 266... When the long-established rule of strict construction of Judicial Code 266 and that of protection of the docket of this Court is also considered in conjunction with the necessary interference with the normal operations of the federal judicial system by the establishment of the three-judge requirement in Hawaii, we are not persuaded that Congress intended 266 to cover Hawaii.

We hold that Judicial Code 266 is not applicable to Hawaii, that we are without jurisdiction in case No. 52 and that the appeal therein must be dismissed."

2) Case No. 474: "What we have said concerning the final judgment in the District Court of Hawaii establishes that the judgment was entered by a court improperly constituted under Judicial Code 266... We are of the view, however, that the United States District Court for Hawaii, as a matter of its discretion, should have refused to grant this injunction," because "the application of the Act to foreign language schools and teachers" should have been considered and reviewed by a Hawaiian court first. "[T]erritorial like state courts are the natural sources for the interpretation and application of the acts of their legislatures and equally of the propriety of interference by injunction."

The US Supreme Court reversed the judgment of the District Court.

Justice Vote: 0 Pro vs. 9 Con
  • Reed, S. Con (Wrote majority opinion)
  • Frankfurter, F. Con (Joined majority opinion)
  • Jackson, R. Con (Joined majority opinion)
  • Burton, H. Con (Joined majority opinion)
  • Vinson, F. Con (Joined majority opinion)
  • Douglas, W. Con (Joined majority opinion)
  • Murphy, F. Con (Joined majority opinion)
  • Black, H. Con (Joined majority opinion)
  • Rutledge, W. Con (Joined majority opinion)

    The ACLU, as amicus curiae, urged affirmance of the judgment of the special district court; the Supreme Court dismissed No. 52 case and reversed case No. 474 in a 0-9 vote, giving the ACLU an apparent loss.