Full opinion text
BIGGS, Circuit Judge. The two cases at bar may be disposed of in one opinion. The general jurisdiction of the court (its jurisdiction under Section 266 of the former Judicial Code and under Section 2281 of revised Title 28 of the United States Code, Annotated, effective September 1, 1948, aside) is alleged to be founded on the second, third and fourth Federal Civil Rights Acts, Act of May 31, 1870, 16 Stat. 140, Act of April 20, 1871, 17 Stat. 13, and Act of March 1, 1875, 18 Stat. 335, 337, R.S. §§ 1977, 1979, 8 U.S.C.A. §§ 41, 43, 44 and 46, and upon Section 24(14) of the Judicial Code of 1911, now Section 1343 of revised Title 28 U.S.C.A., and upon Amendments I, V, VI, XIV and XIX to the Constitution of the United States. Jurisdiction is also allegedly based upon Section 24(1) of the Judicial Code of 1911, now revised Title 28, Section 1331, U.S.C.A. The complaints at the two numbers are quite similar in substance. The International Longshoremen’s & Warehousemen’s Union (ILWU), a voluntary unincorporated association and labor union, is a plaintiff at each number; Kawano, individually and as a member of the ILWU and as president of what was the Territorial Council of the ILWU, is a plaintiff at No. 828. The no longer existent Territorial Council of the ILWU is also named as a plaintiff at this number. Rania, in his individul capacity and as president of the United Sugar Workers, ILWU, Local 142, is a plaintiff at No. 836. Both Rania and Kawano allege, as indicated, that they sue not only individually but in representative capacities on behalf of the ILWU’s membership of approximately 30,000 persons in the Territory of Hawaii. The complaints assert that all other individual plaintiffs are residents of the Territory of Hawaii, members of the ILWU, and are daily wage earners in either the sugar industry or the pineapple industry of the Territory. This is found to be the fact. It is asserted that all the individual plaintiffs at both numbers, either ethnologically or as a matter of mores of the Islands, are “members of races other than the Caucasian race”. The particulars of these allegations were either proved or stipulated to. ****The races of the individual plaintiffs referred to were variously alleged, and proved or -stipulated, to be the Malayan, the Polynesian and the Mongolian, sub widely varying national strains, viz., Filipino, Hawaiian, Hawaiian-Caucasian, Chinese, Japanese, Portuguese and Puerto Rican. These facts possess significance only in relation to the challenges and motions made to the jury commissioners of the Circuit Court of the Second Circuit of the Territory of Hawaii and to the motions and challenges made to the 1947 Maui County grand jury. Most of the individual plaintiffs are alleged, and proved or stipulated to be citizens of the United States. Some of the individual plaintiffs are alleged, and proved or stipulated to be aliens and citizens of the Philippine Republic, or aliens and citizens of Japan, or aliens and citizens of other nationalities. Again we deem these facts to be of significance only in relation to the attack on the jury commissioners or upon the grand jury of Maui County. The defendants at both numbers are identical except that the defendant, Jean Lane, Chief of Police of Maui County, sued individually and as chief of police at No. 828, is not named as a defendant at No. 836. The defendant, Walter D. Acker-man, Jr., Attorney General of the Territory of Hawaii, is sued individually and as attorney general. The Honorable Ingram M. Stainback, Governor of the Territory of Hawaii, is sued individually and as governor. E. R. Bevins, County Attorney of the County of Maui, and Wendell F. Crockett, Deputy County Attorney of the County of Maui, áre sued individually and as County Attorney and Deputy County Attorney respectively. Judge Cable A. Wirtz, a Circuit Judge of the Territory of Hawaii, is sued individually and as one of the jury commissioners of Maui County. The jury commissioners and the 1947 grand jurors of the County of Maui are also sued individually and in their official capacities. Both complaints allege mutatis mutandis that there were strikes conducted by the ILWU in the sugar and pineapple industries in the Territory; that in furtherance of the objectives of the strikes, viz., improvement in wages, hours and conditions of employment, the individual plaintiffs engaged in “lawful, peaceful and constitutionally protected activities of speech, press and assemblage and of peaceful picketing”. The complaint at No. 828 alleges that Lane, Chief of Police of Maui County, caused the individual plaintiffs (other than Kawano) to be arrested and charged them with violations of an act of the Territory generally known as the unlawful assembly and riot statute, Revised Laws of Hawaii 1945, c. 277, Sections 11570-11584; that the plaintiffs Barbosa, Maile, Degamo, Kaopuiki, Nitta, Ah Ho, Aikala, Yagi, Arruiza, Oda and Matsuura were charged in a complaint executed before a district magistrate of Maui County with violations of the same statute; .and that the plaintiffs Makekau, Siruet, Baldua, Sipe and Mendes were similarly charged in a complaint also executed before a local magistrate. It is asserted also that the defendants Acker-man, Stainback, Bevins and Crockett have sought to present criminal charges framed on the complaints to the grand jurors of Maui County; that the defendants, Pombo and Chatterton, and Judge Wirtz, as jury commissioners, chose and composed Maui County grand juries in such a manner as to violate the constitutional rights of the plaintiffs and in violation of the laws of the United States and of the Territory of Hawaii. The complaint goes on to recite that certain individual plaintiffs (particularly designated hereinafter) filed motions and challenges to the grand jury and to the methods employed in selecting its members for the reasons set out in the complaint, to be discussed hereinafter, that these charges and challenges were heard by the Honorable Albert M. Cristy, a Circuit Judge of the Territory of Hawaii, in mid-September 1947, but that he held the motions and challenges to be without merit, refusing to disqualify or to dismiss the grand jury. The plaintiffs then allege that the unlawful assembly and riot statute is unconstitutional in that it deprives them of their rights of free speech, press and assemblage and will subject them to criminal prosecutions if they exercise their constitutional rights. Agliam, Abraham Make-kau, and thirty-four other additional plaintiffs were added as parties to the complaint by stipulation and by order of the court. It is alleged that these thirty-six individuals are held to bail under a complaint charging them also with violation of the unlawful assembly and riot statute. The complaint closes with the prayers, inter alia, (1) that a temporary and permanent injunction issue from this court prohibiting the enforcement of the unlawful assembly and riot act against the plaintiffs and enjoining the submission to the grand jury of facts relating to the plaintiffs’ actions for indictment based on the unlawful assembly and riot act;. (2) that this court declare the statute to be unconstitutional; (3) that we adjudge the method used in selecting the grand juries of Maui County to be unconstitutional and contrary to law and order the grand jury discharged; and (4) that a three judge court be convened pursuant to Section 266 of the Judicial Code of 1911, to determine the case. The complaint at No. 836 attacks not only the unlawful assembly and riot statute referred to in the complaint at No. 828, but also attacks the conspiracy statute of the Territory of Hawaii, Revised Laws of Hawaii 1945, c. 243, Sections 11120-11130. It asserts inter alia that the defendants Ackerman, Stainback, Bevins and Crockett presented “purported criminal charges alleging violation of the * * * unlawful assembly and riot statute and the conspiracy statute” to the grand jurors of Maui County who returned an indictment against the individual plaintiffs (other than Rania) based on the two statutes referred to. The complaint then makes the same allegations respecting the jury commissioners and the means employed in selecting grand juries as are set out in the complaint at No. 828 and alleges that the unlawful assembly and riot statute and the conspiracy statute are unconstitutional. The complaint then goes on to assert that the defendants in two criminal complaints entitled Territory of Hawaii v. Diego Barbosa, et al., and Territory of Hawaii v. Abraham Makekau, et al., pending in the Circuit Court of the Second Circuit, referred to at length hereinafter under later headings, challenged the means employed to select the grand juries of Maui County; that these challenges were heard by Judge Cristy and were disposed of unfavorably' to the defendants. It is alleged also that all the defendants in the criminal complaints referred to are plaintiffs at No. 836. The complaint asserts that unless the unlawful assembly and riot statute and the conspiracy statute are held to be unconstitutional and void all the plaintiffs will be deprived of their constitutional rights and “that it is necessary and imperative that this court assume jurisdiction in the matter and restrain and enjoin defendants from prosecuting or taking any further proceedings in connection with that certain indictment pending in the Circuit Court for the Second Circuit, Territory of Hawaii, entitled Territory of Hawaii v. Joseph Kaholokula, et al., being Criminal Number 2365 * * *, in order that the plaintiffs shall have an impartial, representative and democratic Grand Jury.” The complaint ends with prayers substantially identical with those of the complaint at No. 828 but the first prayer asks specifically that the defendants Ackerman, Bevins and Crockett be enjoined from prosecuting or taking any further proceedings in connection with the Kaholokula indictment, Criminal No. 2365, now pending in the Circuit Court of the Second Circuit. Upon presentation of the complaints to the United States District Court for the District of Hawaii, Senior District (now Chief) Judge Metzger issued rules to show cause and restraining 'orders in the usual form. Due to circumstances over which the court had no control, delays were encountered in convening a court to dispose of the cases. Motions were filed by the defendants in both cases for more definite statements, for 'the dismissal of the actions, for summary judgments, and for dismissal of the actions as to particular defendants on the grounds of misjoinder or lack of jurisdiction. Upon the convening of a court of three judges argument was had on these motions, briefs were filed and all were considered carefully by the court. On April 19, 1948 we entered an order denying the motions to make the claims more definite and certain, for summary judgments and for dismissal of the actions. The motions for dismissal as to particular defendants on the grounds of misjoinder or lack of jurisdiction were retained by the court for further consideration. At the request of the court, counsel entered into extensive stipulations respecting many undisputed facts. Answers were filed. It was in effect agreed by the parties that the court should proceed to final hearing, the defendants expressly reserving all their rights, including the right to renew every objection theretofore made by them or any of them as to the jurisdiction of the court over the parties, the causes of action alleged, or in respect to any other material matter. On April 23, 1948, and on successive days thereafter, the court heard the testimony of some thirty witnesses and received a very substantial number of exhibits. On the agreement of counsel for all the parties and with the permission of the court, the already voluminous record was supplemented with further exhibits. Briefs and requests for findings of fact and conclusions of law were filed later by the parties. Evidence, Save as to that Relating to the Challenges to the Jury Commissioners and the Grand Juries of Maui County. For the sake of clarity we deem it desirable, if not necessary to break down the statement of facts in this opinion into two parts. The first will deal with the labor picture in Hawaii and the incidents growing out of the strikes in the sugar and pineapple industries in the Territory. We will then discuss the law applicable to those facts. The second part of the fact statement will deal specifically with the motions and challenges to the jury commissioners and to the grand juries of Maui County. The second statement of -facts will be found at a later point in this opinion and, immediately following it, a discussion of the pertinent -law. The ILWU and the Labor Picture. Hall, the Regional Director of the ILWU, testified that in 1944 the ILWU was engaged in organizing the sugar and pineapple workers in the Territory; that the ILWU, following the organizational work referred to, represented substantially all of the sugar workers and a majority of the pineapple workers in the Islands; that the ILWU had spent about $350,000 in the organization work and that it cost between $600,000 and $700,000 to administer the union in -the course of a year and that this money was collected from dues-paying members. H-e stated also that as of 1943 the wages of the adult male workers • had been fixed at $1.84 a day by the War Food Administrator. To this was added a 15% bonus. At the time of the trial before us the approximate daily rate of pay of plantation common laborers or plantation harvesters was “well in excess of $8.00 per day”. The witness made it plain that in the contracts negotiated with the sugar and pineapple industries by the union on behalf of its members there were and are no provisions for the arbitration of wage issues and that no employer in the two industries had ever submitted a wage issue to arbitration, and that the point on which negotiations bad, ruptured, bringing on the strikes referred to> was that of pay. Hall testified also in substance that the enforcement of the unlawful assembly and conspiracy acts had necessitated a decision to terminate the pineapple workers’ strike. He said as well that “ * * * during the sugar strike a considerable number of our members were charged with the violation of the Unlawful Assembly Statute, and because I was in consultation almost daily with the elected strike committee, we were informed by the workers on Maui that the charge had struck almost, you might describe it as terror into the workers involved there, because they felt that for carrying on legitimate picket activity and to face a sentence of twenty years meant that everything was being thrown at them, and the strike could not be effective.” He said in respect to a contemplated strike by longshoremen, members of -the ILWU, that “it would be in effect suicide for the union to attempt to strike with such a statute hanging over their heads, a statute that could easily be invoked and has been in our opinion, or where there have been minor disturbances that might have been provoked by agents provocateur.” Hall’s testimony stands virtually uncontradicted and we find his statements to be true. We think that we are entitled to find on this record, and we do find, that the ILWU, at all times pertinent to the instant disputes, has served and is serving as the collective bargaining agent for the sugar and pineapple workers in the Territory of Hawaii. The labor picture and the sociological background of the sugar and pineapple industries in the Territory of Hawaii are indeed extraordinary. Ten owners own half of all privately owned land in Hawaii. The tendency in both industries has been toward larger plantations and toward the elimination of the so-called “adjacent planter” who by his very situation has become economically dependent on the large plantation close to him. As is stated in the authority cited in footnote 9 supra and on the same page referred to in the note, “The land tenure system is quite different from that in any other part of the United States and is a legacy of the feudal system under native royalty which preceded annexation. At that time such lands as were suitable for sugar cultivation were owned in large tracts and were, therefore, leased or purchased in large tracts for plantation purposes. Nearly half of the land is still leased * * * Hawaiian sugar production from its very inception was on a larger scale than is typical of mainland farming. As the plantations have decreased in number, the output of the industry as a whole has increased in value.” As the larger plantations have • pbsorbed the smaller ones, a result economically though perhaps not socially desirable, the necessity of 'the majority of the inhabitants being employed by the 'larger operating companies has increased to the point where the bulk of the population on the “growing” islands could not exist without such employment. Moreover, most, if not all, of the employees live in company houses in company towns and the tenure of their homes is dependent on their employment. Conversely, the companies cannot prosper or even operate without the labor, skilled and unskilled, of the residents of the growing islands. What has been said in respect to sugar growing is largely applicable to the pineapple industry as well. The raising of sugar cane and the growing of pineapples are the two major industries of the Territory of Hawaii. A very substantial portion of the products of these industries moves in commerce to the mainland of the United States. For example the raw sugar which the Territory of Hawaii has produced and will continue to produce in such vast quantities is sent almost entirely to the mainland for processing. These facts are common knowledge, of which we may take judicial notice, but see “Hawaii”, published by the United States Department of the Interior, January .30, 1948, at pp. 8 and 19. The tendency in both the sugar and ■pineapple industries, as the result of inexorable economic law operating against plantation owner or manager has been to compel them to get labor as cheaply as possible. To this end for over a hundred years, whether the owner or plantation manager has been native king or prince, Englishman, American or German, he has endeavored to bring into the Islands workers to cultivate his fields and harvest his crops as cheaply as possible. The nationalities imported have been Ghinese, Japanese, Koreans, Okinawans, Samoans, Filipinos, Portuguese, Spaniards and Puerto Ricans. There are even some persons of African or Afro-American descent on the Islands. The more numerous nationalities and their several racial backgrounds 'have mixed with the Americans of Caucasian ancestry or with the native Hawaiians; they have mixed very well indeed. There is presently little, if any, purely racial strife in the Territory and most of the nationalities and their progeny have made common cause in the interest of higher wages and better working conditions against the plantation owner or operator who is generally a “haole” or of the haole class or group. This has not always been true. See “Hawaii: a History”, Kuyken-dall and Day, Prentice-Hall, Inc., 1948, at p. 275. A satisfactory definition of the word “haole” is hard to encompass. It was defined by a witness in the instant proceedings as generally “a person of mainland America[n] or of northern European, stock * * *, not a person of Portuguese, Spanish or Porto Rican descent”. The word by simple dictionary definition means “white, foreign”. Romanzo Adams, late professor of sociology at the University of Hawaii .in his book “Interracial Marriage in Hawaii” , put a gloss on the weird which we think 'is correct. Mr. Adams said that the word referred to “rank”, rather than to “race”. Actually the “haole” group in Hawaii is not far from being co-extensive with the entrepreneur and land-owning, land-controlling group. Specifically, the “haole” group control the companies for which the individual plaintiffs (except Kawano and Rania) in the instant cases work. The labor relations between the land-controlling and the working groups are tense and have been so for generations. Put simply, the situation is one which calls for moderation on both sides. Extreme measures whether undertaken by the employees or by the employers have afforded and will afford no relief. Each group is dependent on the other; both must regard each other’s rights and privileges. The history of labor relations in the Territory of Hawaii has not been a happy one. On occasions that history has been bad indeed. It is certain that the 1924 strike of Filipino laborers and its attendant circumstances brought great strain to labor relations in the Territory and caused very substantial damage to them. In the eyes of the plantation owners and operators this strike was unjustifiable. It culminated in a riot at Hanapepe on the Island of Kauai in which four policemen and sixteen Filipinos were killed and a number of other persons wounded. Sixty of the seventy-six participants, who were laborers, were sentenced to prison terms, most, if not all, of them having been indicted under the unlawful assembly and riot act. Two of the defendants were sentenced to four years and eleven months imprisonment; fifty-eight were sentenced to four years imprisonment and sixteen were acquitted. See The Hawaiian Annual for 1925, and the Honolulu Star-Bulletin, issues of September 9, 10, 11, 12 and 23, issues of October 10, 27 and issue of November 8, 1924. An extraordinary feature of the prosecutions was the fact that the territorial government was apparently without funds to conduct them and accepted the support of the Hawaiian Sugar Planters’ Association to pay special prosecutors. See the Honolulu Star-Bulletin of. September 13, 1924. There was in effect an arcing of law enforcement from the regularly constituted territorial authorities to prosecuting attorneys employed, albeit in the name of the Territory, by the planters. The employment of special prosecutors has met with the approval of the Territorial Courts not only in cases involving labor disputes but in other criminal cases as well. It is an undesirable custom of long standing whereby on occasion the administration of public justice has in effect been brought into the hands of the private property owner. It has occurred most frequently, perhaps, in criminal cases growing out of such labor disputes as the Hanapepe incident. See Territory v. Soga, 20 Haw. 71. As to cases not involving labor disputes see Territory v. Robello, 20 Haw. 7, and Territory v. Chong Chak Lai, 19 Haw. 437, Ann.Cas. 1912B, 657. The facts stated in the foregoing paragraphs are notorious and we take judicial notice of them since they occurred within this jurisdiction. Contemporaneous accounts may be employed by the court on analogy to refreshing recollection. See Brown v. Piper, 91 U.S. 37, 42, 23 L.Ed. 200. It is interesting to note the Territorial law on this subject. See The Estate of His Majesty Kamehameha IV, 2 Haw. 715, 718, and Bishop v. Mahiko, 35 Haw. 608, 618-624. We think that the Filipino workers’ strike and its attendant circumstances resulted in the amendment to Section 4351 of the Revised Laws of Hawaii 1925, effected by the Act of March 15, 1929, Laws of the Territory of Hawaii, Regular Session 1929, Act 4, p. 3, whereby the term of imprisonment which could be imposed for violation of the unlawful assembly and riot act of Hawaii was raised from five years to twenty years and we so find. The sentences of the convicted strikers had expired just as the Legislature convened in 1929 and there was evident fear that when these men returned to their people on Kauai some form of demonstration or labor trouble might result. The unlawful assembly and riot act of the Territory of Hawaii is discussed at length under a later heading of this opinion. The Incidents Which Led to the Instant Suits. The complaints and the indictments referred to in the pleadings and evidence in the cases at bar grow out of a number of occurrences, some involving a measure of violence, which arose in turn from strikes in the sugar and pineapple industries. The first occurrence, upon which defendants in the cases at bar lay considerable emphasis, took place at Paia on the Island of Maui and is referred to by common agreement as the “Paia incident”. Others took place on the Island of Lanai (part of Maui County), one at 'the Kaumalapau harbor and wharf, the loading place for Lanai City, another occurring at or near Lanai City itself. These are generally described as the “Lanai incidents”. There were other occurrences (some on the Island of Oahu) germane to the issues of the law presented by the instant cases and certain of these will be discussed hereinafter. A strike of the sugar workers in the Territory of Hawaii commenced on September 1 and lasted until November 19, 1946. This strike in effect was won by the union. A strike of the pineapple workers of the Territory commenced on July 10 and continued to and including July 15, 1947. This strike was lost by the union primarily because of the enforcement of the unlawful assembly and riot act. The Paia Incident. We will deal first with the Paia incident which occurred on October 16, 1946 while, the sugar workers’ strike was in progress.. Maui Agricultural Company is a sugar company having its mill at Paia on the Island of Maui, Maui County. A public highway known as -Baldwin Avenue lies between the company’s office and its milk Prior to October 16, 1946 there had been extensive picketing of the company’s mill with but little, if any, police interference. The hour set for the commencement of mill operations on the day the incident occurred was 7:00 a. m. Before the mill whistle blew, five persons, long-time residents of' Maui and union men who had gone out on. strike, appeared on -the scene, desiring to-•return to work. One of them, Moniz, on the previous day had requested of Captain. Long of the Paia police detail protection-in getting through the pickets to go- to work. After receiving this request Long-had followed Moniz across the street to-the picket line in front of the mill but the-pickets stood shoulder to shoulder and’ would not let Moniz through though requested to do so both by him and by Long. Moniz then said that he was coming back “to go to work tomorrow!’. Long reported this matter to Assistant Chief of Police Andrew Freitas and on the following day, the 16th, Freitas went to-the scene with additional men of the regular police force from the Wailuku District.. When the police arrived “orderly picketing” was going on. There was a line on the mill side of the street in double column. A few minutes after 6:45 a. m. the line at the mill entrance was increased to four columns, the' number of pickets being between three and four hundred. After certain preliminary conversations between members of the ILWU, Kealoha, Joseph Kaholokula, and others, respecting the entry of the five workmen to the mill it was stated by Kaholokula that if the five men tried to cross the picket line, “police .or no police”, there would be violence and bloodshed. When the mill whistle blew the five men started across the street toward the mill entrance escorted by the police. Nelson Souza, one of the men seeking admittance, was ahead with Captain Long beside him. About two hundred of the pickets left the picket line and converged, blocking the rdad and the mill entrance. Souza tried to get through the line at the point where Awana was but the latter braced himself and the mass of union men, without using their hands, pushed the group seeking entrance to the mill back about five feet. At this point both Freitas and Kaholokula called out that the men should stop the fracas, be quiet and listen. Freitas then read to the crowd Section 11773 of the Revised Laws of Hawaii 1945, which provides a rather substantial penalty for “Loitering”. Thereafter, a second attempt was made by the five men and the police to get through the line of union men and into the mill. Awana, who previously had kept his -arms on his breast, this time stretched them out to enlarge the barrier: No blows were struck but the group of five workmen and the police were pushed ten to twelve feet back across the avenue. Freitas asked the five workmen if they desired to try to get into the mill again and they replied that they did not wish to make a third attempt. Freitas then informed the union men that the attempt to put the five workmen into the mill was over, and he and Kaholokula had breakfast together and in fact exchanged congratulations that the incident had come to an end without physical injury to any one. After this occurrence picketing continued at Paia until the issuance by the Circuit Court of the Second Circuit of an ex parte temporary injunction in Maui Agricultural Company, Limited v. International Longshoremen’s and Warehousemen’s Union, et al., Equity No. 325, limiting even peaceful picketing to three persons, the court stating in its opinion that picketing should be so restricted because of the territorial statute relating to unlawful assembly. See pp. 91-2 of the transcript of record in the appeal in the case of International Longshoremen’s Union v. Wirtz, 9 Cir., 170 F. 2d 183, in the United States Court of Appeals for the Ninth Circuit. Logically, under the provisions of the statute as they will appear hereinafter, Judge Wirtz should have restricted picketing to two persons, not three. An application was made to Supreme Court of the Territory for a writ of prohibition to issue against Judge Wirtz of the Circuit Court of the Second Circuit of the Territory of Hawaii to compel him to vacate the injunction. In International Longshoremen’s Warehousemen’s Union et al. v. Wirtz et al., 37 Haw. 404, rehearing denied, 37 Haw. 445, the Supreme Court of Hawaii, holding that the Norris-LaGuardia Act, 29 U.S.C.A. §§ 101— 115, was not applicable to the territorial courts of Hawaii,, refused to issue a writ of prohibition against Judge Wirtz to compel him to vacate the ex parte injunction restricting picketing previously referred to. The decision of the Supreme Court of Hawaii was affirmed, as we have said, by the Court of Appeals for the Ninth Circuit. It should be noted that Judge Wirtz’ decision constitutes an important contemporaneous construction of the application of the unlawful assembly and riot act. Following the Paia incident a complaint was sworn out before a district magistrate and subsequently seventy-eight members of the ILWU were arrested. The complaint is not in the record before us but there is evidence from which we find that it was based on the unlawful assembly and riot act. Later an indictment charging seventy-eight persons with violation of the unlawful assembly and riot act was returned by the 1946 grand jury of the Second Judicial Circuit of the Territory of Hawaii (Maui County) on October 30, 1946. Of these persons, at least seventy-five were members of the ILWU. Seventy-five of these defendants are plaintiffs at our No. 836. Benjamin Awana, one of the plaintiffs at No. 836, testified that to his knowledge four persons who were named as defendants in the 1946 indictment were not present at the time the incident occurred. He named these four as (Dondo) Tomita, Hitoshi Sera, Johnny Nishimura and Frank Matsui. His testimony in this regard is substantiated in part by the fact that three of the four individuals whom he named, viz., Tomita, Nishimura and Matsui, were not included in the subsequent indictment of December 2, 1947 returned by the Maui County grand jury. We find as a fact that the three individuals last named were not present during the occurrence of the Paia incident. But it is to be noted that Tomka, Nishimura and Matsui were under indictment, charged with violation of the unlawful assembly and riot act for more than a year before the Supreme Court of Hawaii held the indictment to be invalid for reasons stated hereinafter. See Territory of Hawaii v. Kaholokula, et al., 37 Haw. 625. See also the facts relating to the finding of the indictment of December 2, 1947 under the next heading of this opinion. Roy Yasunaga, who also was named in the first indictment, was omitted in the second. No reason for the omission is supplied by the record. It is probable that he also, though arrested because of the Paia incident, took no part therein. The facts last stated are of importance because of the very wide net which the police and prosecuting officers of Maui County threw about the workers who were on strike. This point will be amplified when the first Lanai incident is discussed. The arrests following both the Paia incident and the first Lanai incident were in fact made in mass. It is desirable to point out here that Freitas and the other police officers had no intention of invoking prosecution of the strikers under the unlawful assembly- and riot statute of the Territory at the time of the happening of the Paia incident or until they, had conferred with Deputy County Attorney Wendell F. Crockett of Maui County to determine the form which ■ the complaint should take. We find Assistant Chief of Police Freitas to be a most credible witness and we accept his testimony with but one minor exception as indicated in note 25, infra. He stated that in Maui County complaints are prepared by the police and are taken to the County Attorney’s office for perusal. Freitas stated that Mr. Crockett instructed him to make up the complaint in question “to read unlawful assembly”. W’hile we recognize the duty of a prosecuting officer to determine the form and the substance of a complaint, the invocation, of the unlawful assembly and riot statute possesses unusual significance when viewed in the light of other pertinent circumstances of the cases at bar. Facts Relating to the Testing of the Constitutionality of the Unlawful Assembly and Riot Statute by Kaholokula and Others. The defendants named in the indictment of October 30, 1946, Joseph Kaholokula, et al., contested the validity of the unlawful assembly and riot act and the sufficiency of the indictment in the Circuit Court of the Second Circuit. When these issues were decided unfavorably to them in that court they took an appeal to the Supreme Court of Hawaii. This appeal was possible by virtue of Section 9531, Revised Laws of Hawaii 1945, which provides for an appeal of an interlocutory order of a nisi prius court. The Supreme Court on November 26, 1947 held the statute to be constitutional but ruled also that the indictment was insufficient in that it contained no allegations of “the acts done or actually begun to be done in furtherance of the unlawful assembly.”- See Territory of Hawaii v. Kaholokula et al., supra, 37 Haw. at page 642. It should be noted that the Supreme Court of Hawaii held also that a riot is an offense under the act though no order to disperse, by proclamation or otherwise, has been given or made. See 37 Haw. at pages 638, 639. Kaholokula and all of his co-defendants in the indictment of October 30, 1946, except Pias, deceased, and four others, Matsui, Nishimura, Dondo Tomita and Yasunaga, were reindicted by the 1947 grand jury of the Grcuit Court of the Second Circuit, at No. 2365, for breach of the unlawful assembly and riot statute in count 1, and for conspiracy to, commit a felony, third degree, in count 2. Masao Sera was also named in the second indictment. It should -be noted that there had been no remittitur by the Supreme Court to the Circuit Count in the Kaholokula case referred to before Kaholokula, his former co-defendants and one additional defendant, were indicted by the 1947 Maui County grand jury for offenses growing out of the Paia incident. These facts must be referred to again at a later point of this opinion. The prosecution of Kaholokula and his co-defendants under the new indictment has not been proceeded with because of the temporary restraint issued by this court at No. 836. The Yamauchi Incident. Mac Masato Yamauchi, a carpenter employed at the Pioneer Mill Company, Ltd. at Lahaina, was also charged with violation of the unlawful assembly and riot statute. See the two complaints against Yamauchi and others, Plaintiffs’ Exhibit 5. Yamauchi’s actions were a contributing, if not the primary, cause of an assault and battery upon certain other employees of Pioneer who were set upon by a large number of other strikers in order to prevent further irrigation from an irrigation ditch. The complaint states that the offenses occurred on November 6, 1946. Yamauchi and those who allegedly acted under his orders were named by the 1946 Maui County grand jury in two indictments returned on December 12, 1946. The first indictment, numbered 2379, Plaintiffs’ Exhibit No. 6, contained three counts, “Riot”, “Conspiracy-Third Degree” and “Assault and Battery”. The second indictment, numbered 2380 but also designated as Plaintiffs’ Exhibit No. 6, contained similar counts. Yamauchi pleaded nolle contendere to the assault and battery charges, and the other charges, riot and conspiracy, were nolle pressed. The Lanai Incidents. While the Kaholokula case was pending in the Supreme Court of Hawaii there occurred the incidents on the Island of Lanai referred to in the complaint at our No. 828. The individual plaintiffs at No. 828, other than Kawano, were employed by the Hawaiian Pineapple Company at or near Lanai City, Maui County, at the times when the incidents occurred. We will deal immediately with that Lanai incident which occurred first. The Hawaiian Pineapple Company owns the Island of Lanai. The Island is entirely populated by employees of the jompany and their families, totaling about 4000 persons. See “Hawaii”, p. 11, published by the United States Department of the Interior, supra. The company maintains a wharf at Kaumalapau Harbor about seven miles distant from Lanai City to the end that the pineapples harvested on its plantations in and about Lanai City may be shipped to market. Pineapples are brought from the fields in specially constructed bins ready to be loaded on a pineapple barge when one is brought to dock. On the day of the incident, July 14, 1947, about eleven bins of pineapples, picked before the strike on the plantations of the Hawaiian Pineapple Company and brought to Kaumalapau Harbor, lay on the dock. The company intended to trans-ship them to a barge which was about to be brought into the harbor. A white line, a kapu line, had been painted on the land side of the road to designate the outer boundary of the company’s property. Kapu signs were posted along this line. About 3:00 P.M. there were fifteen or sixteen men near the wharf, sitting on the sea wall. About 3 :- 30 P.M. truck loads of union men began to arrive at the wharf until there were about three hundred present. There was some picketing. About 4:00 P.M. the expected barge came in and was secured to the wharf. The picketing which had ceased temporarily began again headed by five union “picket policemen”, one of whom was Diego Barbosa. While this was going on employees of the company, who ordinarily worked in supervisory capacities and who were non-union men, -began to take positions on and about the bins, obviously with the intention of loading the pineapples on the barge. Among these employees were Harrington and Johnson. Another supervisory employee, Fernandes, started to operate the -crane. 'Barbosa ran toward the pineapple, bins and across -the kapu line, signaling for the other men to follow him. All the men, as they crossed the kapu line, according to Freitas’ testimony, yelled at the tops of their voices. Some of them mounted the bin on which Johnson and Harrington were working. Johnson escaped without injury but Harrington was punched and beaten about the head and body as was demonstrated by the motion picture film shown to this court. The men who mounted the bins, broke them open and threw pineapples at the men on the tug and the barge. The supervisor, Fernandes, who had started to operate the crane, ran away pursued ■by at least fifteen men who punched at him. He was chased down a,stairway to a lower portion of the wharf where he fell or jumped into the water. As he swam away his attackers threw pineapples at him, though none -of these actually struck him. Another nonunion employee, Charles Marquis, was also forced into the water but reached the protection of the barge. Freitas had only five police officers with him. He told Bar-bosa to call off his men, saying that the work would stop. Barbosa called the men back to the sea wall or road. The incident lasted about five minutes, the barge then leaving -the pier. Motion pictures were taken at the wharf by a police officer, by an engineer and draftsman employed by the Hawaiian Pineapple Company, and by a school principal. Stills were printed in Honolulu from the motion picture negatives. Some arrests for participation in the incident were made on the basis of reports by the police officers who were present and eleven persons, including Barbosa, were named in a criminal complaint, dated July 16, 1947, based on the unlawful assembly -and riot act. On August 1, 1947, about two weeks after the incident, a complaint was filed against Agli-am and fifty-one additional defendants. This complaint also was based on the unlawful assembly and riot Act and will be referred to' hereinafter from -time to time as the Agliam case. Before the preliminary hearing m the District Court four persons were dropped and after the preliminary hearing, the names of twelve more defendants were removed from the Agliam complaint. The remaining thirty-six were held for action of the Maui County grand jury. The grand jury has not yet acted in respect to the case of Barbosa, et al., due to the restraining order issued by this court at No. 828, or in respect to the case of Agliam, et al. Assistant Chief of Police Freitas testified on cross-examination in this court that a number of pictures were taken at the harbor both before and after the incident as well as during it. He was asked, “Isn’t it true that a large number of pictures were taken after everything was pau [finished] ” ? He replied, “Yes, there were pictures taken afterwards.” We find it to be a fact that a number of persons came to the scene presumably out of curiosity after the incident was over. Freitas testified that “all these pictures” were used in compiling the list of names in the complaint sworn to by him before the magistrate. One individual, Aki, was present during the incident but took no part in it. He was arrested nonetheless. He was not a member of the ILWU at the time. A police officer, Lieutenant Madeiros, told Aki that he was surprised that he was arrested at all as he was not a union man. Aki was quickly discharged from custody. It will be observed that sixty-three persons were subjected to criminal process by reason of the Lanai incident and that only forty-seven of them were finally held for action of a grand jury. Again the law enforcement officers of Maui County threw a very wide net. The Deputy County Attorney for Maui County as before instructed Freitas to cause the complaints to charge violations of the unlawful assembly and riot act. Barbosa and the others named in the complaint, Exhibit D attached to the complaint at our No. 828, filed certain motions and challenges to the 1947 Maui County grand jury. This matter must be referred to again at a later point in this opinion. The Kalua Incident at Lanai City. The second incident on the Island of Lanai occurred early in the morning of July IS, 1947. Its' victims were Jacob Kalua Na'hinu and Sam Kalua. Both roomed in House No. 7 in Block 33, Lanai City, and were truck drivers employed by the Hawaiian Pineapple Company. Neither had gone out on strike. Shortly after S :30 A. M. twenty to twenty-five persons, most of whom must be assumed to have been strikers since they were headed by “union police” with arm bands, proceeded to administer a severe beating to Jacob and when his brother, Sam, attempted to rescue him, he too was beaten. Jacob was caught between the house and the communal washroom. The Kalua brothers were able to identify only five persons who were arrested on a complaint made the same day. The persons arrested were Abraham Make-kau and four others. They were committed to await, action of the grand jury. This complaint also was based upon the unlawful assembly and riot act. The prosecution of Makekau and his co-defendants has not been proceeded with by reason of the restraint issued by this court at No. 828. Makekau and his co-defendants joined with Barbosa' and his co-defendants in filing the motions and challenges to the 1947 Maui County grand jury as mentioned in the last paragraph of the preceding subheading. Incidents Occurring in and About the City and County of Honolulu During the Pineapple Workers’ Strike. There was testimony that one Sibolboro and seven others were arrested for obstructing a highway in the City and County of Honolulu on July 13, 1947. Sibolboro lay down in front of a truck, preventing it from proceeding on the highway. He was sentenced to six months imprisonment but sentence was suspended. Eighty-three other persons were also arrested as the result of another incident in the County of Honolulu on the same Sunday and charged with obstructing a highway at Turner’s Switch. These charges were later nolle .pressed. Excessive Bail. In numerous instances the bail required of the defendants, plaintiffs herein, in criminal proceedings growing out of the strikes, seems to us to have been so large as to be excessive. Pedro De La Cruz testified that he was president of Local 152 and had the duty of making bail with union funds for union members charged with the violations of law hereinbefore referred to in this opinion. He testified that Makekau and the four others arrested with him and charged with unlawful assembly and riot were required to make bail in the amount of $1,000 apiece; that Diego Barbosa and one of the ten other persons arrested with him for violation of the unlawful assembly and riot act were required to give bail in the amount of $1,000 apiece; three of them were granted bail in the amount of $500 apiece; and the remaining defendants were granted bail in the amount of $250 apiece. It should be noted that Shigeto Minami, who had nothing to do with the Kamaulapau Harbor incident, save his appearance at the scene perhaps three hours before the incident occurred, was held in bail of $100, though released after subsequent hearings. Even in the Makekau case, growing out of the assaults on the brothers Kalua, bail set in the amount of $1,000 a defendant seems too high. The requirement of bail in such an amount for an assault and battery would seem to be unusual even on the eastern and western seaboards of the United States. There is but little chance for a defendant under bail to escape from the Territory of Hawaii or even from Maui County by reason of geographical isolation. The Use of the Unlawful Assembly and Riot Statute. It will be observed that the unlawful assembly and riot statute has been extensively, and indeed almost continuously, invoked by the law enforcement officers of Maui County against members of the ILWU during the course of the sugar and pineapple strikes; indeed, on occasions and under circumstances, for example those in connection with the Kalua brothers and the Ya-mauchi incidents, when the invocation of the statute seems inappropriate. The record demonstrates a leaning on the part of the law enforcement authorities of Maui County toward the use of the unlawful assembly and riot act when a statute like the assault and battery act, Chapter 239, Sections 11050-11060, Revised Laws of Hawaii 1945, would, we think, have been employed if the motive for prosecution had been only the maintenance of good order in the community and the punishment of minor law breakers. Certainly, the penalty provisions of Chapter 239 must be deemed to be adequate for those purposes. Wendell F. Crockett, Esquire, the Deputy County Attorney of Maui County and a defendant at both Nos. 828 and 836, testified before this court. We found him to be a most credible and intelligent witness. He was asked by the attorney for the plaintiffs, “In your experience of thirty years as deputy county attorney for the County of Maui, have you ever prosecuted any person for unlawful assembly and riot except as it grew out of a labor dispute ? ” He replied: “To my recollection except for the present cases, there was only one case prosecuted in the County of Maui for unlawful assembly, and that grew out of an alleged kidnapping that took place during a labor dispute.” We have found but one reported case -in which the unlawful assembly and riot act was invoked in a case which did not involve a labor dispute. This is Republic of Hawaii v. Carvalho, 10 Haw. 446, which involved a riot among Portuguese members of the island community. This case, as indicated, was prior to annexation and occurred during the life of the Republic of Hawaii. No evidence was offered by the defendants to rebut Mr. Crockett’s testimony on this very important point. Since one of the major issues in the instant cases is the good faith of the prosecutions instituted against the individual plaintiffs by the Territory under the unlawful assembly and riot act, had rebutting testimony been available, assuredly it would have been brought forward by the able attorneys for the defendants ; evidence, not only as to the unlawful assembly and riot act being employed against groups other than labor groups in Maui County but in any other part of the Territory of Hawaii as well. In the absence of such rebutting testimony we a're entitled to find and we do find, that the unlawful assembly and riot act has been employed by the Territory only against lab- or groups in labor disputes, at least for the last three decades. Mr. Crockett testified also that 'he would proceed with the prosecutions of the plaintiffs as soon as circumstances would enable him to do so. The Law, Save that Relating to the Motions and Challenges to the Jury Commissioners and Grand Juries of Maui County. The challenges to the grand jury commissioners and to the grand juries of Maui County, as we have said, will be treated under a later heading since these subjects are separated to a considerable degree from the facts and the law relating to the incidents hereinbefore referred to and to the unlawful assembly and riot act and the conspiracy statute of the Territory. We will deal first with our authority to sit as a three-judge court pursuant to the authority of revised Title 28, and then with the attacks on the constitutionality of the two territorial statutes last referred to. As to Our Authority to Sit as a Court of Three Judges Under Section. 2281 of Revised Title 28 U.S.G.A., or as a Court of Three Judges Sitting En Banc. We state in limine that we are of the opinion that the provisions of revised Title 28 U.S.C.A., effective September 1, 1948, are applicable in the cases at bar. See Section 38 of the Act of June 25, 1948, c. 646, 62 Stat. 992, Section 1 of which enacted revised Title 28. While it is true that the provisions of the revised Title were not in effect at the time the suits at bar were filed or when they were heard, we deem this fact to be immaterial. It is important only that the provisions of revised Title 28 are in force at the time of our decision. We have functioned as a three-judge revised Title 28, Section 2281 court in adjudicating the issues presented by the pleadings and the evidence in the instant cases. Congress by enactment of revised Title 28 saw fit to change the status of the United States District Court for Hawaii while the present litigations were pending by enacting revised Title 28, Sections 451, 133 and 134(a). The parties, however, cannot complain respecting the new enactment which changed the status of this court since they do not suffer “ * * * loss of rights, interruption of jurisdiction, or prejudice * * * ” in the pending matters. See Section 2(b) of the Act of June 25, 1948, c. 646, 62 Stat. 985. The parties in fact do not make any complaint respecting the changed status of this court, though their arguments, both written and oral, in large part have been based upon the provisions of the Judicial Code of 1911. We can function only pursuant to the powers conferred upon us by Congress and therefore we must decide the pending cases under the provisions of revised Title 28 if we are to make the decisions. A helpful analogy is supplied, we think, by those authorities which hold that procedural amendments are to be applied to pending cases. See Schoen v. Mountain Producers Corporation, 3 Cir., 170 F.2d 707; McCullough v. Virginia, 172 U.S. 102, 19 S.Ct. 134, 43 L.Ed. 382; State of Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 59 U.S. 421, 15 L.Ed. 435, and Hodges v. Snyder, 261 U.S. 600, 43 S.Ct. 435, 67 L.Ed. 819. Cf. Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409; Baltimore & P. Railroad Co. v. Grant, 98 U.S. 398, 401, 402, 25 L.Ed. 231; Federal Reserve Bank of Richmond v. Kalin, 4 Cir., 77 F.2d 50, 51, 52; and Link v. Receivers of Seaboard Air Line Ry. Co., 4 Cir., 73 F.2d 149, 151. We can find no authority strictly in point. The critical language of Section 2281 of revised Title 28, states that no interlocutory injunction or final order restraining the enforcement “of any State statute” by “any officer of such State” shall be granted except “by a district court of three judges” as provided by Section 2284. Cf. the provisions of Section 266 of the old Judicial Code. It will be observed therefore that there are two barriers which must be cleared before the jurisdiction of this court, sitting as a three judge Section 2281 tribunal, becomes plain. The first is in the use of the word “State” in Section 2281 and in Sections 2283 and 2284. May it be said that the unlawful assembly and riot act and the conspiracy statute of the Territory of Hawaii are statutes of a “State” or “State statutes” within the purview of the sections? The second barrier lies in the nature of the United States District Court for the District of Hawaii. Is it “a district court” within the applicable language of the statute? We will discuss the second question first and are aided in determining it by additional pertinent sections of revised Title 28. Section 451 provides, “As used in this title: The term ‘court of the United States’ includes the Supreme Court of the United States, * * * [and] district courts constituted by chapter 5 of’this title, including the district courts of the United States for the districts of Hawaii and Puerto Rico * * * ” ; “The terms ‘district court’ and ‘district court of the United States’ mean the courts constituted by chapter 5 of this title” ; and “The term ‘district’ and ‘judicial district’ mean the districts enumerated in Chapter 5 of this title.” Turning to Chapter 5, Section 91, we find that the statute provides, “Hawaii constitutes one judicial district which includes the Midway Islands, Wake Island * * Section 132 provides for the creation and composition of district courts and states, inter alia, that “There shall be in each judicial district a district court which shall be a court of record known as the United States District Court for the district” See subparagraph (a). Section 133 states that “The President shall appoint, by and with the advice and consent of the Senate, district judges for the several judicial districts, as follows: * * * Hawaii * * * 2 * * * [and that only] citizens of the Territory of Hawaii who have resided therein for at least three years next preceding shall be eligible for appointment as district judges ■ for the district of Hawaii.” Section 134 (a) provides that “The district judges, except in Hawaii and Puerto Rico, shall hold office during good behavior. The district judges in Hawaii and Puerto Rico shall hold office for terms of six and eight years, respectively, and until their successors are appointed and qualified.” In view of the foregoing, whatever may have been the status of the district Court for Hawaii prior to September 1, 1948, the effective date of revised Title 28, there can be no doubt that the court is now a “district court of the United States” in all respects pertinent to the instant question and for the application of Sections 2281, 2283 and 2284. Cf. Mookini v. United States, 303 U.S. 201, 205, 58 S.Ct. 543, 82 L.Ed. 748; Ex parte Collins, 277 U.S. 565, 567, 48 S.Ct. 585, 72 L.Ed. 990, and Phillips v. United States, 312 U.S. 246, 248-254, 61 S.Ct. 480, 85 L.Ed. 800. Congress has seen fit to cover, coordinate and integrate the District Courts for Hawaii and Puerto Rico into the federal court system as far as this can be done without constitutional amendment. True, these district courts remain legislative tribunals created by Congress in the exercise of its “sovereign congressional faculty” under Article IV, Section 3 of the Constitution of the United States instead of “true United States court” authorized by Article III. See Balzac v. Porto Rico, 258 U.S. 298, 312, 42 S. Ct. 343, 348, 66 L.Ed. 627. No constitutional provision limits the coordination and integration here conceived of and made operable by Congress. The District Court for Hawaii therefore must be held to be a “district court” within the purview of the sections of revised Title 28 referred to. The second question, i. e., the effect to be attributed to the use of the word “State”, remains for disposition, however. It is indeed a difficult one. There is no doubt that in organizing the Territory of Hawaii Congress saw fit to give to the local government broad domestic powers separating its operations from those of the federal government within the Territory, and that it bestowed upon the Territory a form of organization more like that of a State than had previously been given to any other area. See Alesna v. Rice, D. C. Haw., 69 F.Supp. 897, 899, citing People of Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235. See also Alesna v. Rice, D.C., 74 F.Supp. 865. It is also clear that Congress recognized the distinction between the territorial courts and the United States District Court for the Territory of Hawaii. See Section 86 of the Organic Act, as amended by Section 8 of the Act of June 25, 1948, c. 646. As early as 1901 the Court of Appeals for the Ninth Circuit in Wilder’s S. S. Co. v. Hind, 108 F. 113, 116, perceived that distinction, stating, “The system of courts created by the [Organic] act for the territory of Hawaii differs radically from the system of courts which congress had theretofore created for any of the territories. In no other territory has there been a division of jurisdiction between cases which properly belong to courts of the United States and other cases. Congress found in the republic of Hawaii a system of courts already established, whose jurisdiction was complete, and from the highest tribunal of which there was no appeal. To that system congress, by the act, added -a district court, conferring upon it the jurisdiction which pertains to the district and circuit courts of the United States, and providing for removing to that court from the territorial courts causes which under the removal acts were removable from a state court to a court of the United States.” See also Ex parte Wilder’s Steamship Company, 183 U.S. 545, 22 S. Ct. 225, 46 L.Ed. 321. It is interesting to note that the general principle established by Wilder’s case was early made applicable to habeas corpm proceedings in the District Court of the Territory by a series of cases holding that the federal rule against interference with criminal proceedings in the Territori