Warren E. Burger: Number 103, United States against Armour & Company. Mr. Springer, you may proceed whenever you're ready.
James Van R. Springer: Mr. Chief Justice may it please the Court. This case brings to this Court for the fifth time, questions under the Great Meatpackers antitrust decree of 1920. That decree was entered on consent without a trial on the basis of a bill in equity that the Government had brought against the nation’s five largest meatpackers, Swift, Wilson, Cudahy, Armour which is involved in this case and Morris which Armour subsequently acquired. The complaint in general charged that the packers had violated Sections 1 and 2 of the Sherman Act by obtaining control of a very great proportion of the food supply of the nation, both meat and other foods, and by abusing that control so as to restrict competition among themselves and to eliminate their other competitors. The consent decree that the parties agreed upon in 1920 and that the Court adopted imposed sweeping and perpetual restraints both upon the future activities of the packers and upon the business relationships that the packers would be allowed to have with enterprises engaged in the production and sale of foods other than meat. And despite the efforts of the defendants over the years to relax these restrictions, they remain in effect and this Court most recently in 1961 rejected an attempt by the packers to relax the restrictions upon them. The decree is complex and I will take the time here only to discuss the particular paragraphs that are in issue in this case, that’s principally paragraph fourth of the decree which begins on page 30 of the appendix. That paragraph provides that the meatpacker corporations, including of course Armour, are perpetually enjoined and restrained from either directly or indirectly by themselves or through their officers, directors, agents, or servants engaging in or carrying on the manufacturing, jobbing, selling, transporting except this common carriers, distributing or otherwise dealing in some 114 listed food products, including bakery products, most of it groceries, vegetables and fruits. Paragraph four goes on to provide that the corporation defendants are hereby further perpetually enjoined and restrained from owning either directly or indirectly severally or jointly by themselves or through their officers, directors, agents, or servants from owning any capital stock or other interest whatsoever in any corporation, firm or association except common carriers which is in the same business as what I mentioned, of manufacturing, jobbing, selling, transporting, distributing or otherwise dealing in any of the above described products or commodities. Paragraph six of the decree further perpetually enjoins the defendants from operating retail meat markets and paragraph eight enjoins the packers from dealing directly or indirectly in fresh milk and cream. In short, the meatpacker's decree perpetually excludes Armour from having any direct or indirect interest whatsoever in any firm in the baking or general grocery business and it prohibits Armour from otherwise dealing directly or indirectly in the enumerated products. The decree as what is commonly referred to as the structural decree that is rather than simply enjoining the defendants from particular anti competitive acts. It establishes a prophylactic separation between the defendants' business, excluding them from other businesses where it's felt that they're involvement and might create a danger competition. General Host, which is the appellee in this case is the company that's widely involved in the baking business and the general grocery and restaurant businesses. It was known until a couple of years ago as General Baking Company and under the brand name Bun Baking Company and others that manufactures and sells throughout the country a complete line of bread and other bakery products. It also has a division called Little General Stores which has some 380 convenience retail food markets in various parts of the south and it also has subsidiaries that operate restaurants and other tourist facilities throughout the country. It's plain and undisputed in this case that General Host's business is such that under the 1920 decree Armour could not have acquired any direct or indirect ownership interest whatsoever in General Host. This litigation began about a year ago when General Host decided to do the reverse of that. It would take over Armour by acquisition techniques that have become familiar in recent years. Over the opposition of Armour's management, General Host made a tender offer to Armour's stockholders in which had sought to acquire a majority of Armour stock in return for package of the debentures and the stock warrants in General Host. The tender offer was expressly conditioned upon the tender by shareholders of enough stock to give General Host an absolute majority of Armour stock and it provided that it will called off if that amount of stock were not tendered. When the tender offer was made, the Government immediately sought to block this takeover on the theory that a corporate alliance between Armour's meatpacking business and General Host's bakery and retail grocery businesses would be just as inconsistent with the meatpacker's decree if initiated by General Host as it would have been if initiated by Armour. It was plain of course that General Host's acquisition of Armour would not be directly punishable under the decree since the active party, General Host, was not a party to that decree. Accordingly, the Government went to the District Court in Chicago which has had continuing jurisdiction at least in the recent years over the meatpacker's decree and there the Government requested a supplemental order to prohibit the takeover by General Host. It did this consistent with paragraph 18 of the decree which like most decrees expressly retains jurisdiction for the purpose of taking such other action or adding to the foot of this decree such other relief if any as it may become necessary or appropriate for the carrying out in enforcement of this decree.
Byron R. White: Did the Government's request to the District Court subsume a request to amend the decree?
James Van R. Springer: Not in terms and of course this is the -- I think the semantic problem that is at the heart of this case. Of course, we'll going back and back --
Byron R. White: Let's assume the Government had taken the approach that we think the decree should be amended expressly to prohibit matters like these, would any different kind of a hearing or any different kind of procedure then required?
James Van R. Springer: I think we would contend that there would not be any requirement for different kind of procedure on the theory that I of course will elaborate that we think that in a very real sense the four corners of this decree do provide a rather clear condemnation of this kind of situation.
Byron R. White: Well,let's --
James Van R. Springer: In other words, we're not -- the Government's theory of the case to approach it in another way has not been based upon any sort of change in facts other than of course the undisputed facts it takes.
Byron R. White: What if you -- if you accepted the fact that the purpose of the decree was to prohibit an alliance of any kind between the Armour entity and any of the other described entities then it wouldn't make much difference whether you amended it or just interpreted it, would it?
James Van R. Springer: No I think not, and of course I could make further observation that it seems a little strange and inconsistent with traditional equitable theories for a decree to say nobody in the world shall takeover this company. That's an unusual form and that the least for decree and of course it doesn't have any operative effect in the normal sense.
John M. Harlan II: For now, as a matter of interpretation. You say, there have been an unusual provision, that's exactly your argument now?
James Van R. Springer: Yes, but what we say -- I was just addressing myself to the question of whether the presence or absence of such language in a decree would make any difference. We say and I will elaborate that substantively this decree established a separation between these two businesses and the establishment of that separation as a substantive matter is frustrated by this kind of takeover.
John M. Harlan II: Are you suggesting here that the tendered by Host stimulated or initiated or originated and collaborated in by Armour?
James Van R. Springer: No, it's undisputed that the opposite is the situation. It was opposed, but I do find it hard to see why under the theory followed below and the theory that the appellees followed why that should make any difference. Whoever does it or whatever the motives are, whatever the intentions are, precisely the same kind of situation will arise.
Warren E. Burger: Doesn't that overlook the fact that traditionally and ordinarily you have to have a party in order to reach them with relief?
James Van R. Springer: Well, of course the Section 5 of the Sherman Act specifically does provide and this was relied upon by the Government below that whenever the interests of justice shall so require, the Court may bring in additional parties.
Warren E. Burger: Did you follow that procedure that Mr. Justice White suggested?
James Van R. Springer: Oh! The amending with decree well I think --
Byron R. White: [Inaudible]
James Van R. Springer: Yes, General Host and of course Section 5 permits that to be done as a procedural matter and establishes the Court's jurisdiction over --
Warren E. Burger: Was General Host in existence in 1920?
James Van R. Springer: I believe that its predecessor General Baking Company I think it was incorporated in 1911. Of course it had no connection whatever with these packers and there was no reason for the Government even to think about bringing it in or foreseeing what might happen in a very different kind of business climate some 50 years later on. Judge Hoffman in the District Court of Chicago of course denied the Government's petition to add General Host as a party and to add an order to the decree prohibiting the takeover. He relied quite simply on the proposition as I read what he said that the literal terms of the decree do not prohibit non-defendant owners of stock in meat packing companies from engaging in businesses prohibited to meatpackers themselves and by the decree. In other words, as he explained orally, that the decisive fact in the case was that Armour will not be the controlling force whether the instrumentality of General Host is ever since villain of the peace and that's the term he used, it was not Armour but General Host, the decree was powerless, the decree could not be used to prevent the takeover. If Judge Hoffman's rather scanty conclusions of law rests on the proposition that he did not have jurisdictional power to supplement the decree in this kind of way, we think he was plainly wrong, for the reasons that we set out in our brief which I believe are not basically disputed by the appellees.
Potter Stewart: I didn't read the District Court as saying it was without the jurisdiction of power?
James Van R. Springer: It's not clear that it did, if it did I think it was wrong. I think power is not really an issue -- the major issue that is here.
Potter Stewart: That is between you and your --
James Van R. Springer: I believe that so, yes. There's a certain amount of back and forth I think within General Host's [Voice Overlap] briefs. So, I will direct my point only to the proposition that the structural prohibitions of this decree are frustrated, in some sense violated by this takeover. And I think General Host does, in the last analysis, agree that if that's the case then the Court could and indeed should have granted the relief requested. I think this perhaps the problem as I suggested in this case is a semantic one basically. The basis for our whole case is the proposition that the decree is violated or frustrated because the takeover creates the situation that the decree was designed specifically to prevent. General Host and the court below as I understand them say that can't be so because nobody has disobeyed the command that the decree directed to them because, the decree does not in terms prescribed Armour's acquisition by a grocery company. We think that's much too narrow reading. Of course the decree is not -- a civil decree is not punitive document and it obviously does affect people other than the particular individuals who happened to be accused of wrong doing at the time the decree was entered. So, I think it's not shocking or unusual the decree should affect parties in the business sense, people other than the initial parties to the case. We think in fact the literal language of the decree condemns precisely the situation that has been created by the takeover. Paragraph four not only prohibits Armour from indirectly engaging in General Host's business, but even more specifically, it prohibits Armour from having directly or indirectly any capital stock or other interest whatsoever in General Host or in General Host subsidiaries that are engaged in the businesses. It seems to me extremely literalistic to say that when Armour is the subsidiary of General Host, it has no interest whatsoever either in General Host's business or in the business of General -- its sister subsidiaries of General Host. Certainly, as I suggested, this conclusion seems not difficult to reach if this kind of situation arose by actions in which Armour or its management joined or perhaps even instigated and equally I think it would not seem troublesome to say that the decree which prohibit a situation where Armour or its stockholders or management or dissident stockholders through proxy provider or something like that created a holding company which then had two subsidiaries, one of them being the old Armour and the other being General Host. To put it in other way, the situation we now have is if one corporation that directly or indirectly is in both businesses, the meatpacking business and the grocery business and that corporation is General Host, directly in the grocery business and it's indirectly in the meatpacking business through its controlled subsidiary Armour. And we think that that is just precisely what the structural provisions of the decree prohibited and in fact the only reason why there would have been structural provisions in the decree is to prevent that kind of situation from arising.
Potter Stewart: There were originally five corporate defendants?
James Van R. Springer: Five, it soon became four through the merger of Morris into Armour.
Potter Stewart: And I suppose there are other large meatpackers?
James Van R. Springer: Armour is number two I believe. Swift is somewhat larger.
Potter Stewart: Cudahy --
James Van R. Springer: Cudahy is quite a bit smaller.
Potter Stewart: I don't know what the other is. What if General Host had taken over the -- well what if in the mean time since 1920 another meatpacking company become the biggest in the country --
James Van R. Springer: I think that might have been --
Potter Stewart: -- and if General Host had taken it over, would you be here saying that this decree should cover that situation?
James Van R. Springer: No, no, I think not and whether we could have a theory that the decree ought to be modified, I think it will be very hard for them to hold, but of course, that's the situation that arises in the case of any decree. It's well established that on the basis.
Potter Stewart: It might have been --
James Van R. Springer: [Voice Overlap]] historic violation --
Potter Stewart: It might be an original lawsuit against that situation?
James Van R. Springer: Yes certainly, but historic violations --
Potter Stewart: And that certainly might be true here too?
James Van R. Springer: Yes, but old violations do give raise to perpetual decrees and of course there is a ground for modification, if the defendant subject to the initial decree can prove that there are at some serious competitive disadvantages because of drastic changes in the market.
Hugo L. Black: Is this that same old consent decree that's been with us about 40 years?
James Van R. Springer: 50 years, Mr. Justice Black. It has been twice, well three times there are some current efforts. In the early 30s meatpackers tried to modify it to relieve them of just these restrictions on their involvement in the grocery business and they had another effort beginning in the late 50s which ended in 1961 when this Court summarily affirmed the District Court's determination that the packers had not made the kind of showing that would be required to justify a modification of the decree. So, the decree, though it's old, has been in the sense revivified within relatively recent years. We think it's highly pertinent to the problem here what the Courts said in considering these earlier requests for modification because we think that the language the Courts used and analysis this Court and the District Court followed in those cases gives rather explicit content to the substantive prohibitions and shows what their specific purpose was. In 1932, Justice Cardozo speaking for the Court in the second Swift case in this Court rejected, as I said, contentions that the market had changed that the wrong doers were not in the picture anymore and therefore it was not necessary to maintain this separation between the grocery business and the meatpackers business and the Court used the following language which I think is revealing here. Whether the defendants would resume their predatory practices if they were to deal in groceries again, we do not know. They would certainly have the temptation to reason with. Their low overhead and their gigantic size even when they are viewed as separate units would still put them in a position to starve out weaker rivals. Their size according to the holding in this Court is not an offense against the Sherman Act unless maybe to the point at which it amounts to monopoly, but size carries with it an opportunity for abuse. It is not to be ignored when the opportunity is proved to be utilized in the past. The original decree at all events was framed upon that theory and Justice Cardozo went on to say that if the grocery business is added to the meat business, there may be many instances of unfair pressure upon retailers and others with the design of forcing them to buy from the defendants and not from the rival groceries, such at any rate was the rationale of the decree of 1920. Its restraints whether just or excessive were born of that fear. The difficulty of fretting out these evils and repressing them when discovered supplies an additional reason why the structural restriction should be maintained.
Warren E. Burger: Well, all those things are good arguments for proceeding against General Host perhaps in an independent proceeding, independent action?
James Van R. Springer: I think --
Warren E. Burger: If it's fundamentally, fundamentally unwise, unsound to have these two branches of the food industry combined, that can be reached in other ways in this case.
James Van R. Springer: Yes, of course there are problems and I'm told enormous problems in the traditional Section 7 action in a case like this. The point I was driving at was not that as a general proposition the combination of a large packer and a meat company is a bad thing, but that this Court has read this very decree which has a party to it Armour as embodying a specific purpose to prevent that kind of addition of the grocery business to Armour's meatpacking business. And for that reason, we think that the Government should have not to start from scratch and having been specifically decreed that Armour's business should not be combined with the grocery business. And none of the past history, language the Court have used is there any suggestion that the importance of this separation depends upon who threatens to break it down. The reason for the separation is plainly the danger of any corporate link however created between Armour's large size and power which of course when General Host owns and controls Armour in a very real sense becomes the power that General Host has. Certainly, there are separate corporate entities, but I find it very hard in my mind to say that when General Host wholly or in the sense of absolute control owns Armour that General Host is not Armour in some very meaningful sense. The ultimate owners are the same. Armour's destiny is controlled by General Host. So, I think that apart from the conceptual fact that there are separate corporate shells, if you will, Armour is in a very real sense or has become General Host. General Host is -- Armour has the power that the decree was specifically designed to keep Armour from using in a business which is General Host's business.
Byron R. White: There are some suggestions I saw I guess in the brief or that this is a transitory or impermanent situation, that Greyhound is in the picture somewhere?
James Van R. Springer: Greyhound is in the picture, yes. There has been a contract signed as I understand it, but Mr. Bergson will have the up-to-date information I think better than I do. A contract was signed last fall whereby General Host would sell its interests to Greyhound, that contract has not been consummated. It's subject to several contingencies, one of which we don't know what the meaning of the parties attached to this is the absence of any Government action against the consummation of the contract. The Government has notified Greyhound that we feel that Greyhound's ownership of Armour's stock would present substantially the same problem as General Host because Greyhound owns a great many restaurants and also has a food distributing business. Now, whether that fact is enough to wash out this contract to something that I don't know that perhaps General Host comes [Voice Overlap] --
Warren E. Burger: If General Host were to enjoined as a party, if the motions have been granted, would the scope of that litigation have been as broad as if General Host had been proceeded against independently?
James Van R. Springer: If I have said would this the same amount, with that same kind of proceeding trial have been held?
Warren E. Burger: [Voice Overlap]
James Van R. Springer: We say that under these circumstances there are no undisputed facts that are pertinent to the proposition that the Government is seeking to establish that the four corners of the decree prohibit this situation. Of course, in various situations there might well be pertinent facts that would have to be explored at an evidentiary hearing, but we say, that's not the case here. I'd like if I can to reserve rest of my time.
Warren E. Burger: Very well, Mr. Springer. Mr. Bergson.
Herbert A. Bergson: Mr. Chief Justice and may it please the Court. Perhaps I should answer Mr. Justice Stewart's question first by describing the present status of the negotiations between General Host and Greyhound. The agreement was signed some time ago, subject to three things, approval of General Host stockholders, approval of Armour's stock -- no, Greyhound stockholders, and approval of the ICC because Greyhound is a motor carrier and under the Interstate Commerce Act any acquisition of this type must be approved by the ICC.
Potter Stewart: And the agreement provided for the sale by General Host to Greyhound of General Host's interest in Armour, is that right?
Herbert A. Bergson: That's correct. And the Greyhound stockholders have approved the agreement. The General Host stockholders have approved the agreement, the ICC has not yet acted on the application. And I am not prepared to prognosticate this too when the ICC might act on that application. Now, as Mr. Springer indicated, there is also a problem as to what the department might do in attacking the General Host's -- the Greyhound acquisition in the same manner that it has attacked General Host acquisition but I don't believe that that is a condition to the consummation of the transaction. There is a provision --
Warren E. Burger: That should permit -- the present statute permits the Department of Justice to intervene in the Interstate Commerce Commission proceedings?
Herbert A. Bergson: I suspect that the Department of Justice can intervene or move to be heard as amicus or make their presence felt at the ICC in a way that their views would made known at the ICC. I don't know, Your Honor, whether the department could intervene, I believe it could. They intervened in railroad mergers and I don't know why they couldn't intervene in the case, in a situation like this, but even if they couldn't intervene, they certainly could make their view known as amicus. Now, I was delighted to hear Mr. Springer say that there's no issue as to the power of the Court here to whether the Court has the power to protect its decrees from interference or obstruction. As I read the Government's brief in this case, I thought that this was their major point. And that the case has now become what I think it was all along, a question as to whether or not this decree as it now stands can be interpreted to prevent this transaction and if it can be so interpreted what type of hearing is General Host entitled to before that interpretation is imposed on General Host. What the department did in this case was merely to go to the District Court, file an affidavit and say General Host is in the baking business. The baking business is proscribed to Armour, therefore, you must proscribe this transaction and we don't think the only hearing that they thought was necessary was to show that General Host was in the baking business. Now, I think it's somewhat shocking for the Department of Justice to take the position that a person who is not a party to an equity decree was never been heard on that decree, who was not joined at the time of the decree although it was in existence at the time the action was maintained. It's bound by the decree without proof of anything else. It seems to me that under any circumstances even assuming that the department's interpretation of the decree is right, the General Host is entitled to a hearing on whether or not it should be bound by the decree because I don't believe that two parties to a lawsuit with the imprimatur of the Court can deprive anybody obvious legal rights and one of the basic legal rights that a person seems to have is the right to due process, the right to be heard.
Byron R. White: Mr. Bergson what would the -- what would you say if the original decree had said that Armour can acquire any stock in a baking company and no baking company can acquire any stock in Armour and then this transaction took place and the United States applied to the Court for an order preventing General Host from -- which had never been a party to the case --
Herbert A. Bergson: That's right.
Byron R. White: -- to prevent General Host from acquiring stock in Armour?
Herbert A. Bergson: I think that under those circumstances General Host would be entitled to a hearing as to whether or not that type of order should have been entered in the first place. Let me give you an illustration Your Honor and I think it's terribly important especially in these days.
Byron R. White: So you say no parties do -- no parties to injunction suits can be held in contempt or even have the order amended to apply to them without re-litigating the basic factors of the injunction?
Herbert A. Bergson: Oh! No, General Host was not a party to the injunction suit.
Byron R. White: I agree, I know, that's what I say. Your assertion is that unless you're a party to an injunction suit, you can never be --
Herbert A. Bergson: You can't be held in contempt to that injunction.
Byron R. White: And nobody has attempted to hold --
Herbert A. Bergson: And the department concedes that.
Byron R. White: Yes, and nobody has attempted to hold General Host in contempt.
Herbert A. Bergson: But, I don't think that they can be made subject to the injunctive provisions without having a hearing as to whether or not they should have been made.
Byron R. White: You mean, without having a hearing as to whether or not on the whole basic substance of the injunction case?
Herbert A. Bergson: Well, whether or not this case was based primarily on a proclivity by these meatpackers to violate the antitrust laws, that they had a long standing conspiracy that and it encompassed not only horizontal agreements among them, but vertical agreements. They own food businesses, they own stockyards they own warehouses, they own transportation facilities and as a result of all, these tremendous mess they were able to affect the commerce in the substitute food business. Now, I think that they consented to this decree. But I don't think it makes any difference whether it's a consent decree or a litigated decree, but nevertheless, would seem -- it seems to me and it is my position that under the circumstances that you postulate, they would have to be shown that this decree should be imposed on General Host and not merely because it was into baking business.
Byron R. White: Let's suppose that General Host and Armour made a contract to sell a large amount of treasury stock of General Host to Armour and the Government applied for an order against both Armour and General Host.
Herbert A. Bergson: I don't have any problem with that Your Honor.
Byron R. White: But why wouldn't you, because the the order against General Host?
Herbert A. Bergson: Because they -- I think an injunction is applicable to not only to the parties, but anybody in proclivity or acting in consent with the parties and under the circumstances that you postulated they would be acting in consent.
Byron R. White: So there's a non-party being subjective to the injunction without being able to re-litigate anything?
Herbert A. Bergson: But he is doing in privity with the --
Byron R. White: Alright, that's the way you characterize it but nevertheless that's a non-party being subjected to --
Herbert A. Bergson: I think I can state my position this way. That to the extent that any non-party is found to have been acting in concert of privity with a party whether it says so in the decree or it doesn't say so in the decree, the rules make such a privy subject to the injunction. But the government concedes here that there was no such concert and that there was no such privity and you're talking, they're trying to make the decree applicable to a company that had absolutely nothing to do and no friendly relations with any defendant and I think that this is carrying an equity decree far beyond this scope that it has ever been carried by this Court and probably ever would be carried by this Court.
Warren E. Burger: You're suggesting about joining all the food companies in the country, at least I took it that way, joining all the food producers in the country, grocery producers isn't really very realistic, is it?
Herbert A. Bergson: I don't believe that's the -- I don't believe you correctly characterized my suggestion. You're talking about something that I said or something in our brief?
Warren E. Burger: Something that you said.
Herbert A. Bergson: No.
Warren E. Burger: The intimation I got at least and perhaps you better clear that up that if they wanted to take this position, they should have joined General Host and a whole lot of other people similarly situated?
Herbert A. Bergson: Well, that's right. It may not be realistic, but I think that's the only thing that they could do what --
Warren E. Burger: Well, it's a rhetorical position on your part then to make your point I take it?
Herbert A. Bergson: That's right. But our position here Your Honor is this. Number one, that the decree can't be interpreted the way the Government seeks to interpret it and you just can't turn words upside down. If you look at the decree as in this writ, the decree was very, very carefully framed. And it is not a structural decree per se as Mr. Springer would have you believe. There are many behavioral, behavioral provisions in the decree. There were three types of defendants in this case. There were the meatpacker defendants, there were individual defendants who are the major stockholders in the meat companies and there were some 50 subsidiaries of the meat companies who were defendants. This was a -- there were quite a few defendants in this case. Now, when the consent decree was negotiated, these various defendants were given different types of treatment, the provision that Mr. Springer referred to, two of them, four and eight specifically referred to corporate defendants. Paragraph six which is another one that he referred to applies to all defendants and paragraph five of the decree applies to individual defendants. Now, in paragraph five of the decree, the individual defendants, the people who were then in control of the meatpackers were permitted to own stock in the forbidden businesses, the businesses forbidden to the meatpackers and they were permitted to own up to 50% of the stock, no question to control this as this Court well knows that you can control a company with much less than 50% of the stock. These companies were permitted to engage in these forbidden businesses and there was an injunctive provision which says, but you can't use them in a way that would help either Armour in its business or yourself or use Armour in a way to help you in your business. So, that this decree did not declare a complete separation as the Government says of the business of meatpacking from substitute foods. It said only this, that the defendant meatpackers, the defendant meatpackers and that is the way that the language of the decree is, the packer defendants, corporate defendants, are enjoined from doing this. So that it seems to me that you can't characterize this decree as a prophylactic structural decree, but this is a decree that was arrived at by negotiation and it was some structure and some behavioral and the parties knew exactly what they were doing and they did not intend to reach the situation. Maybe they weren't aware of it, maybe it didn't occur to them, but obviously they didn't intend either sub silentio or actually to reach the situation that is covered here. So that, in effect what the department is seeking here is a modification of the decree as Mr. Justice White indicated and I might add here that the department has construed this decree in the past the same way that we're construing it now because they have -- one of the provisions of the decree prohibits the packers from engaging in the stockyard business, but the people who controlled Armour before General Host acquired the control of Armour also controlled the Chicago stockyards, this is all set out in our briefs.
Byron R. White: Is that the Prince Family?
Herbert A. Bergson: That's the Prince Family, yes Your Honor and our brief points out what the stock holdings were. They had 10% to 15% of the stock and there was a cross privilization of management and there was no -- and the Government hasn't contested this. And the Government has said in connection with that argument, well maybe we construed the decree erroneously before, but we're doing it right now.
Byron R. White: You don't think it would make any difference if General Host acquires 100% of the stock?
Herbert A. Bergson: Oh no.
Byron R. White: You think the district judge thought that would have made a difference?
Herbert A. Bergson: No, I do not believe that he thought that that would make a difference. I think that --
Byron R. White: You seem to emphasize the lack of the possibility immediately of General Host getting control of the board?
Herbert A. Bergson: No, but I think what he went on to say however that he did not find that control itself would be bad and that if General Host abused its control and caused Armour to violate the decree come on back, and I'll enjoin it quick as a flash, but mere ownership doesn't cause Armour to violate the decree.
Byron R. White: What -- what kind of a hearing would you say that you required for the Government to [Inaudible] amendment?
Herbert A. Bergson: Well, what happened -- there are a couple of precedents in this area. One is this Court's decision in the Hughes case where the Government sought a construction of the decree and the Court sent it back and said that this was an attempt to modify the decree and that an appropriate hearing should be had to determine whether this type of relief is necessary. Now, I think we're entitled to a hearing as to whether, at least a hearing, as to whether or not this type of relief is necessary to effectuate -- let us go this far, I'm just conceding this for argue --
Byron R. White: To effectuate what Mr. Bergson?
Herbert A. Bergson: To effectuate what the Government claims with the purposes of this decree.
Byron R. White: Well, what do you think the purpose of --
Herbert A. Bergson: The purpose of --
Byron R. White: You apparently deny that one of the purposes that you effect to separate the meatpackers and other food processors?
Herbert A. Bergson: No, I say that it was -- it was -- the purpose of it was to prevent proven or admitted violators who had used their power in the past from using it in the future which is done in many, many antitrust cases, but we are non-proven violator and we are a non-proven violator or non-admitted violator.
Warren E. Burger: You don't treat it as a blanket prohibition in the terms that Mr. Justice White has postulated that food processors, bakers, non-meat food processors should never be in combination with meatpackers?
Herbert A. Bergson: Oh no, I don't think anything in this decree, anything in this decree prohibits the largest beef packer in the country today, this isn't in the record but I hope you'll pardon, but Mr. Justice Stewart, I think asked this question. The largest beef packer in the United States today, which the Iowa Beef Company is not subject to this decree and it can go out and acquire General Host any day it wants. Now, all the Government can do about that is bring a Section 7 case and I think that's what the Government should do here. If they think, if they think that General Host control of Armour constitutes a reasonable probability of a substantial lessening of competition in any line of commerce, they have a Section 7 case. They're not without remedy here, even apart from the decree. But what the Government is trying to do here, we submit Your Honor is that just short circuit this whole business probably out of fear that they can't successfully maintain a Section 7 case or couldn't successfully maintain the burden of modifying the decree which is a heavy burden and the rule of which had been laid it down in one of the prior decisions in this case and to avoid that burden both for modification and for proving a Section 7 violation they have adopted this arbitrary, summary procedure or seek to have you sanction this arbitrary summary procedure which deprives General Host of its day in Court and we submit Your Honor that this is not an appropriate form of action in this area, thank you.
Warren E. Burger: Thank you, Mr. Bergson. Mr. Springer, you have five minutes.
James Van R. Springer: Thank you Mr. Chief Justice. Perhaps I should correct something. I may have slightly misstated in answer to a question. Of course, we think what we're asking for here is very different from any hypothetical general amendment of this decree to try to make it run against the world. We of course agree that the decree can't run against the world and that is precisely why we haven't contended and wouldn't contend that General Host has done anything that would subject it to punishment for contempt of this decree. The Government filed a petition, gave General Host the opportunity to have a hearing and to bring in anything they wanted to bring in on the issue whether or not it's proper that this decree should give rise to a new order directed directly to General Host which then of course would subject it to contempt punishment. So, we don't see that there's any issue of due process in this case at all. General Host has had a hearing and the only issue was what ought to be said at that hearing. If Mr. Bergson is asserting the proposition that it is only parties who are in direct active concert with the parties to a decree who in any way can be effected by the decree, I think for one thing he is suggesting a doctrine which is inconsistent with what appears to be accepted doctrine and specifically in the civil rights area where this has come up. The simple fact that a man who comes in and tries to frustrate the performance of a school desegregation decree is not working together with the school board against whom that decree in terms was directed has never been a barrier for a supplemental order very much like kind of supplemental order we're asking for here against a particular individual. Although Mr. Bergson acknowledges that decree, and we don't disagree with him, contains both behavioral provisions and structural restrictions. He then turns around as I understand his argument and treats the decree as if it contained nothing but behavioral prohibitions. For that reason we think it's -- we think that's wrong and we think that that's really beside the point to argue again and again that this decree could not possibly affect General Host because no Court has ever determined that General Host had done anything bad. I think that argument in substance was rejected in the earlier modification proceedings in this case where a similar argument was made that that the bad people who made Armour do bad things in the past and made the other packers do bad things aren't here anymore. Now, we just have a new set of stockholders and the management who are totally innocent and of course they shouldn't be bound by past wrong doings of other people. I think that's really beside of the point. One other matter, I think, any suggestion that the fact that this decree contains a paragraph which relates to what might be done by particular individuals none of whom by himself was a controlling stockholder, at least in the case of Armour I believe, to say that that is the means that -- nor the part of the decree has any bearing on interlocking corporate interest, I think simply doesn't follow. I think the problem of the individual defendants in 1920 was a relatively small, separate problem and that to say that that precludes the Government to take any action against what might be a 100% owned, 100% owning corporate stockholder, I think doesn't follow. Again, for that same reason, we think that any attempt to say that the Government is bound because it did not take any action against the Prince Family problem is erroneous for a number of reasons. That was in the matter of an individual stock ownership at the most I believe by an amalgamation of people who are various members of the Prince Family, various people who are said perhaps to have some kind of relationship with them. General Host has managed to reach a total of perhaps 13% from stock ownership in Armour. Here where the dealing with absolute corporate control by another corporation and of course, also this is not a matter of past course of action between these two parties about this subject matter, but the collateral matter in those returns.
Warren E. Burger: Thank you Mr. Springer. Thank you for your submission and to you Mr. Bergson. The case is submitted.


Earl Warren: Number 415, Mitsugi Nishikawa, Petitioner, versus John Foster Dulles, Secretary of State. Mr. Okrand.
Fred Okrand: Mr. Chief Justice, may it please the Court, Mr. Davis. This case can and should, in my judgment, be decided without the Court having to reach the constitutional question. In any way that the Court looks at the evidence in this case, petitioner is entitled a judgment either because the lower court failed to apply proper rules of interpretation of evidence as this Court has said it should in an expatriation case or because it imposed the burden of proof upon the petitioner when the burden of proof ought to be properly imposed upon the Government in an expatriation case. The facts in this case are -- in this case are simple and there is no conflict of evidence. The Government introduced no evidence in the case. Petitioner was born in California in 1916. He went to school in California and lived there all his life, graduating from Stanford University. On his graduation as is the case with many of our American boys, he had a chance too and did go to Japan for study and to visit. His expenses were being paid by his father. He went in 1939. In California, his father and mother both lived in California and both his father and mother remained in California when he went to Japan to study and to visit. As luck would have it while he was in Japan in 1939, his father died. And he had no funds with which to return to this country and he went to work in an aircraft plant. In 1940, for -- I failed to mention and I think I -- it's important that I do. Being born in California in 1916, that is before 1924, of Japanese born parents, he was, of course, under United States law an American citizen, born an American citizen. And he was also under Japanese law, a Japanese citizen by virtue of that birth to Japanese born parents. So that when he went to Japan as a matter of fact in 1939, he had both nationalities. The record is not clear as to whether he knew that fact in 1939 but the fact is that he did have both nationalities. Japan, at that time, had a compulsory universal military conscription law for its nationals which provided severe criminal penalties for evasion thereof. In 1940, under that conscription law, petitioner was required to take a physical examination under the law. Had he not taken it, he would be subject to those criminal penalties. He took the examination. And in -- that was in June of 1940. And in March of 1941, he was inducted under this conscription law into the Japanese Army. Following the War --
Speaker: Did he protest an induction of the Japanese or the American Consulate or --
Fred Okrand: He did not and I will deal with that subject in a moment, because that, as I understand the Government's position, is its main case. That is on what they rely to show voluntary conduct and upon what they rely to show proof of voluntary conduct.
Speaker: Or absence of duress.
Fred Okrand: Absence of duress. Of course in our view, the Government has to go forward and show that it was voluntary, but I will deal with that no protest in a moment. After the war, he applied at the American Consulate in -- in Japan to return to the United States and was told at that time that he was not any longer a citizen of the United States for reason of this military service under the regulations which were in effect then and are in effect now. He was issued by the American Consulate a document entitled "Certificate of the Loss of the Nationality of the United States". This document was executed by the vice consul and approved by the State Department here in Washington. After he received that document and the denial of his passport application, he filed suit in the District Court in Los Angeles for a declaration as to whether he had lost his United States citizenship and was permitted under the law then in effect to come to California for his trial. The trial court ruled against him and the Court of Appeals affirmed.
Earl Warren: Is there anything in the record to indicate what would have happened to him in Japan if he had not -- if he had refused to go into the service?
Fred Okrand: Yes, there is, Your Honor.
Earl Warren: What -- what --
Fred Okrand: There is the -- the Japanese Military Service Law is in the record.
Earl Warren: Oh, is it? Well, then don't bother, you go head --
Fred Okrand: Yes.
Earl Warren: (Inaudible)
Fred Okrand: Setting forth the criminal penalty that is provided in the -- in the event of -- of refusal to comply with the order. In addition, we think there is also in the record, although there are some dispute between government counsel and ourselves. The fact that this Court can take judicial notice of the situation in Japan in 1940 and 1941 which is the critical date, 1941, namely, that it is a totalitarian -- was a totalitarian government which could not have been expected to brook any violation of its draft laws at that time.
William J. Brennan, Jr.: Is there anything in the record to indicate that that situation or in the draft -- anything in the draft law would have brought upon him some consequences if he gone in the American Consulate?
Fred Okrand: Not in the record. There is nothing in the record specifically except the petitioner's testimony.
William O. Douglas: Yes.
William J. Brennan, Jr.: Which was what?
Fred Okrand: Which was that he was afraid to go to the American Consul at that -- at that time because of the conditions in Japan, he was under surveillance as a Nisei which is an American born Japanese person. Because he feared that he would be harmed by the Kempeitai, which is the Japanese Military Police, had he done that. The court below felt two things that the burden of proof was upon the petitioner to establish that he served involuntarily. In this, we think as a matter of law, the court below was wrong and the trial court, well, I'm not specifically saying so in this case, did follow that legal theory that the Government has pointed out that the trial court has tried a number of these cases and in other opinions that he has written, he stated that that is his view of the burden of proof. We think that expatriation being as this Court has said, the voluntary renunciation or abandonment of nationality or allegiance, that it is incumbent upon the Government to prove its entire case, to prove expatriation. And we think the law -- the rule is and ought to be that the Government must prove all the elements of expatriation including the element of voluntary conduct. The court below not having followed that rule on that ground alone, we believe we are entitled to a reversal of the judgment. On another theory, we think that the petitioner is entitled to -- to a reversal of judgment and that is the failure of the courts below to follow what this Court has said is the rule in expatriation cases. Namely, that the facts and the law are to be interpreted so far as it's reasonable in favor of the citizen and that in the event of any ambiguity or any doubt, that must be resolved in favor of the petitioner. I might say to the Court that this case is quite in conflict, as the Government has recognized in its response, to at least the Second and Third Circuits and also to the Court of Appeals for the District of Columbia on both the burden of proof issue and on the feature of the case about resolving factual doubts in favor of the citizen. With reference to your question, Mr. Justice Harlan, the petitioner did not protest, did not audibly protest.He did not go to the American Consulate nor did he audibly protest to any Japanese official. That feature of the case, Your Honor, is the very feature which, it is clear from a reading of the record, prompted the trial court to hold that he affirmatively acted voluntarily. Now, the Government has not disputed because it is the fact and has been for many years. That the Government of a country in which a person is residing particularly if he happens to be under the law of that State, a citizen or a national of that State, has the right to require the military service of that individual whether the other government wants it or not. And as we have pointed out in our brief, the Government has issued in its State Department a little -- a little booklet which it gives to persons who obtain passports. It has specifically stated that it will not and it does not make any effort to relieve an American citizen, who also happens to have the nationality of a foreign state, from military obligation if he is in that state and must respond to the laws of that state. That is not disputed by the Government and it is the fact.
Speaker: How did this man know that?
Fred Okrand: He was told that is in the record. He was told by a friend of his, a Nisei who happened to work at the consul -- at the embassy, I believe, that there was nothing that could be done for him if he should go to the Consulate and make a request for excuse for military service. Now, I must point out to the Court that I think this is one of the things that the trial court said he did not believe the petitioner. I -- I say I think it is because it isn't clear but I -- I think that's one of the things. The trial court apparently did believe the petitioner when the petitioner testified that he did not go to the Consulate but the trial court apparently didn't believe him when he said that the reason that he didn't go was because of fear that he might have reprisals taken against him by the Kempeitai or because he felt that -- that the American Consulate could do nothing for him.
Earl Warren: Would -- was the petitioner's word contradicted in anyway or is it -- was that an inference from the judge?
Fred Okrand: It's an inference -- well, it's -- there is no contradiction of the petitioner's testimony. All the evidence was given by the petitioner, including the documentary evidence. As a matter of fact, upon the conclusion of the petitioner's case, the trial court asked the petitioner -- his counsel, "Do you rest?" And he said, "Yes." Without anything further, the trial court said to the Government's counsel, "Do you rest?" And the Government's counsel said, "Yes." So that the trial court felt obviously that the burden entirely was upon the petitioner to prove his case and the Government had no obligation whatsoever to prove that -- its case under the circumstances.
William J. Brennan, Jr.: Incidentally, did the petitioner admit knowledge that by going into the Japanese Army he was risking a loss of his American citizenship?
Fred Okrand: Oh, no. That is very clear. That there is no admission of that, the evidence is to the contrary, he said he did not know and -- and the trial court also made it very clear that it was not inferring that he did know. That he would lose his American citizenship at the time he went into the army.
William J. Brennan, Jr.: And in that circumstance, what reason would he have had to go to the American Consulate if he didn't --
Fred Okrand: Well, were it not for the fact that an -- that he was told by this friend that he couldn't get any relief. He probably wouldn't except that a person, normally, I should think, in ordinary circumstances would rather not go into the military service if he can avoid it. Perhaps in some compulsion of some kind of war or something like that. So that the -- but the evidence is very clear that he did not know that he would lose his American citizenship by going into the Japanese Army.
Earl Warren: That -- and that was before we were at war with Japan?
Fred Okrand: It was before we were at war with Japan. I may point out to Your Honors that there have been a number of cases involving Italian military service in which the courts have taken into consideration the fact that this was in a totalitarian type of country and in peace time and this was likewise before we were at war and I may say that the trial court viewed it in just the other way. The trial court viewed it in the sense that he ought to have known we were going to get into war. I will not make reference to Pearl Harbor as to my views as to whether I think the trial court was correct in imposing that burden upon the petitioner to have known that we were going to get into a --
Harold Burton: From your point of view, does it make a difference what his subject of attitude was whether he knew he -- he refuses citizenship or not?
Fred Okrand: I think this, Your Honor, I think I can conceive of a situation -- well, perhaps not controlling where he would be relevant. In other words, if an individual knew that he was going to lose his citizenship by this, there could be a situation where that would have relevance as to the voluntariness of his conduct.
Harold Burton: But if he didn't know that wouldn't --
Fred Okrand: If he -- if he didn't know and then there can be none of this implied waiver that -- that seems to run from the Government's briefs except that they always had. I want to save a little bit of time. There is one other argument that I'd like to -- one of the point that I'd like to bring to the Court's attention. Oh, before I do that, one other -- one other matter. The Court of Appeals for the Second Circuit and the Third Circuit very clearly and in my judgment that the Court of Appeals for this District, for the District of Columbia has stated as a rule of evidentiary law that conscription into the army of a foreign country under compulsion of law raises a presumption of involuntary conduct, irrespective of where the burden of proof may lie to prove voluntariness or involuntariness. And those circuits have held that absent proof by the Government overcoming that presumption, a petitioner in the -- a position of -- of this petitioner here is entitled to a reversal of a trial court's judgment withheld -- which held that he served voluntarily. The Circuit below, the Ninth Circuit of course held to the contrary and held that there is no presumption of -- of involuntary conduct by reason of conscription. That will be it under compulsion of law carrying a criminal penalty. We have suggested in our brief also one other reason why this Court need not and ought not read the -- reach the constitutional issue. We suggest that this statute ought not to be applied to this factual situation, namely, conscription under law carrying military -- carrying criminal penalties of a national resident at that time in that country. In answer to the Government's suggestion that then the statute would not apply to anyone, we reply that it would in fact apply to the very individuals which Congress had in mind when it passed this particular bit of legislation. The legislative history of this statute is set forth at some length in the opinion of the First Circuit in the Dos Reis case which is cited in our brief. It sets forth a great deal of the legislative history, namely, to take away citizenship from those individuals who have shown by their conduct that they want to throw off citizenship of the United States and adhere to nationality of another state. Now, we say that -- if that is the purpose of the statute then it ought not be applied to this case because all that there is in this case is a person responding to the law of the country in which he happens to be. One other point and I shall sit down. In Kawakita case which is cited in our brief and which was a treason case in which the arguments were just the other way around. Petitioner was claiming loss of citizenship and the governor was saying -- the Government was saying not. The Government made the point that conduct requires by the law of a foreign state, in which a person was living, could not be used against him. He was excused. It was the word of the Government. Now, if that be true, that is another reason why the statute ought not to be applied for this factual situation.
Earl Warren: Do you -- Mr. Okrand, do you ask anymore than that this case should go back for hearing by the court below to determine whether he did in -- in fact voluntarily -- voluntarily join the army and leaving the burden to the Government as you --
Fred Okrand: Well, as a matter of fact, we are asking more but we are entitled to that at the least.
Earl Warren: Yes.
Fred Okrand: Because as I view the -- all the other circuits, except this one, in the Third and the Second in the District of Columbia precisely on this type of a record, those circuits did not remand but the one exception on the Bruni case, the latest one, did not remand but simply held that -- that on the record, the Government had not repelled the presumption of -- of involuntariness and therefore petitioner was entitled a judgment. But at the minimum, we're entitled to a reassessment in the -- on the -- in the light of correct burden of proof.
Earl Warren: Let's assume for the sake of argument that he voluntarily went into the Japanese Army and voluntarily fought throughout the -- the war. Do you -- would you concede then that the Government had the right to denaturalize him?
Fred Okrand: Well, then we come to the constitutional question.
Earl Warren: Yes, I know.
Fred Okrand: Yes, sir. No.
Earl Warren: You don't concede it?
Fred Okrand: No, I do not.
Earl Warren: You -- you would raise a constitutional --
Fred Okrand: Well, we have --
Earl Warren: -- the question and Mr. Horsky
Fred Okrand: Yes, we have raised a constitutional question in the brief.
Earl Warren: Yes.
Fred Okrand: But it would be duplicating to it.
Earl Warren: Yes.
Speaker: This -- your situation is different from Mr. Horsky's and that you got to do on a nationality situation and --
Fred Okrand: Very clearly, there is no question about that. And of course that's one of the basis for our argument for the -- why the statute should not be applied here.
Earl Warren: Mr. Davis.
Oscar H. Davis: Mr. Chief Justice, may it please the Court. The particular facts of this case are very important because we have here of the findings of a trial judge after a trial adverse to the petitioner, affirmed by the Court of Appeals as amply supported by the evidence. And so there is to a certain extent the invocation of the two-court rule relating to findings of fact upheld by two courts below. The undisputed facts are these. Petitioner was born in the United States in the State of California. He was educated here. He went to the University of California and secured an engineering degree. In August 1939, when he was 23 years of age, he went to Japan on an American passport. His claim was that he went there to visit and study. He knew Japanese apparently as an oral tongue but he did not -- he could not write Japanese or read Japanese because when he got to Japan, he hired a tutor to teach him Japanese characters so that he could read and write Japanese. His father died shortly after he got to Japan in November 1939. He did not then return to the United States. His claim at the trial was that he did not have funds to come back to the United States though his father had given him the funds to go to Japan and he did testify that his father was going to support him during his studies in Japan. It -- he knew when he went to Japan in 1939 -- in August 1939 that he was national of Japan as well as the United States. He was a dual national and he also knew that Japan was fighting in Manchuria, that there were hostilities going on at that time. When his father died and he felt he couldn't continue with his studies as he said, he then went to work in an airplane plant in Japan and this was apparently shortly after his father died in November 1939. In June 1940, he was notified that he would be inducted into the Japanese Army and he came and took a physical examination in June 1940. He was not actually inducted until nine months later, March 1941. Now, during that period of nine months between June 1940 and March 1941, he himself testified that he did not make any protest or any inquiries, letter on protest, any protest or any inquiries of either to the Japanese authorities or of the American authorities. That is the American Consulate or the American Embassy. He did nothing. He did not attempt to renounce his Japanese nationality as some other persons and I think I can say this because it -- it came up in the record of the Kawakita case to which Mr. Okrand mentioned. There were a Japanese dual national to renounce their Japanese nationality abroad in order not to serve in the Japanese Army, nor did he seek to come back to this country in anyway.
Tom C. Clark: You mean it renounced in a vague service it spent?
Oscar H. Davis: Apparently so. Apparently that this was -- this was rather early. This was June 1940 to March 1941. And apparently at that time there was a possibility of -- of abating service or avoiding service by renunciation. At least he didn't make any effort to do that or to find out about that nor did he make any effort to find out whether he could come back to the United States.
Speaker: Is there a --
Earl Warren: You say apparently, is there -- is the law so state over there or --
Oscar H. Davis: I do not know, Mr. Chief Justice. That is my understanding of -- of the -- of the Japanese law. I have gone into --
Earl Warren: In 1941, he was -- the Japanese Empire was in alliance with Hitler, was it not?
Oscar H. Davis: Yes. But his -- in June 1940, he was -- he went abroad in August 1939. He was notified of perhaps induction in June 1940. All I'm suggesting is that there is no showing on this record of any attempt to find out about these things. This is all important because the judge -- Judge Byrne who, as Mr. Okrand has indicated, has heard a very large number of these Japanese expatriation cases in the Southern District of California and has not always many, many times held in favor of the -- of the citizenship claimant against the Government. Judge Byrne found on the basis of the record before him and the testimony of this petitioner, who appeared orally, that this man went to Japan in order to serve in the Japanese Army. He made that specific finding as one of the basis of his holding.
Speaker: Was he the only witness at the hearing?
Oscar H. Davis: He was the only witness at -- at the hearing.
Speaker: Well, how -- where did he base that finding now?
Oscar H. Davis: He based it on the fact that this was a -- a man of a superior education who testified at the trial that he did know -- knew nothing at all about the cold war between Japan and the United States. He didn't know that that war clouds were gathering. He didn't -- he didn't read any newspapers abroad.He didn't know what -- he didn't know that a draft was occurring in the United States. He said he couldn't read Japanese characters or he couldn't read Japanese newspapers and the one English language newspaper that was published there, he said was too far out -- didn't reached him where he was in the country (Voice Overlap) --
William J. Brennan, Jr.: But how does -- how does disbelief of all of that add up to the affirmative finding that he went there purposely to join the Japanese Army.
Oscar H. Davis: You -- you have a man who went in August 1939, who did not return when his father died and even though his father apparently was going to support him abroad who -- and who gave him the money to go abroad, who took a job in an airplane factory, who made no protestations, no inquiry whatsoever in relation to entering the Japanese service. He didn't -- he testified that he didn't make any inquiry or protestation either as to the -- to Japanese officials or to the American officials. He didn't seek to come back to this country in anyway. He was asked at the trial whether he hadn't heard that Americans were being asked at that time to come back to the United States by the Consul there, he said no, he hadn't heard that. I feel somewhat justified in -- in contradicting that because in the material which petitioner has filed, filed not in the trial court but in the Court of Appeals in which it asked this -- this Court to take judicial notice of, petitioner has himself included two depositions of Japanese-Americans in Italy taken by petitioner not -- not in this case, in other cases entirely, in other cases in the Southern District of California, but in -- but depositions taken by the same counsel or on behalf of the same counsel and those are the cases. And there is a specific question in -- in one of those depositions, "Did you not know that the American Consulate was asking all Nisei, all American person, citizens of Japanese dissent to come back to this country in 1940 and 1941?" "Yes, I did."
William J. Brennan, Jr.: And it's this petition?
Oscar H. Davis: No, this is -- this is -- these are depositions taken with relation to other people which are included by this petitioner in matters which he wants the Court to take judicial notice of and we don't think he can -- you can take judicial notice of them. But I -- I mentioned that because petitioner himself has -- has presented them to the Court for consideration. Well, it was on the basis of all these facts and the fact that he did serve in the Japanese Army, that Judge Byrne held that --
Harold Burton: Where did he serve (Voice Overlap) --
Oscar H. Davis: He served in -- in Manchuria and in the Philippines and in Indonesia. And he testified that he knew that there were American troops in the Philippines though he said he did not himself see them. He was in the air force. He -- he claimed he was a mechanic in the -- the Japanese Airforce. This is a man with an engineering degree.
Harold Burton: Where did he serve before he went in the war?
Oscar H. Davis: I believe he served in Manchuria before he went to war and then in Indonesia. Now, he did claim and -- and judge -- I think Judge Byrne disbelieved him. He did claim that there was certain element of fear but his statements as to fear are very weak. He said that he had heard rumors that the Kempeitai, their political police were surveilling Nisei and that they would beat them up. And he said this might be true. He didn't even say that he -- that they were true. He says this might be true and all he said is that there were rumors. He didn't -- he said he had personal contact with the police at all when he testified, that these were rumors that he had heard. He was asked if he checked these rumors with any American official in Japan. He said he did not. "Did you check those rumors with any Japanese official in Japan?" "No, sir."
Hugo L. Black: Mr. Davis, may I ask you, I should take it this is one of the cases maybe where burden of proof would be rather important. Would you think if the burden of proof was on him, in connection with defending his citizenship show that when he is ordered into the army in Japan he had to go?
Oscar H. Davis: May I answer your question in two parts --
Hugo L. Black: Yes.
Oscar H. Davis: -- Mr. Justice Black?
Hugo L. Black: I just thought --
Oscar H. Davis: We think that Judge Byrne in this case held against petitioner regardless of the burden of proof. He does not say --
Hugo L. Black: Well, I don't see from what you've just said how he could possibly done it.
Oscar H. Davis: Well --
Hugo L. Black: On -- on -- if that's your evidence, if that's the --
Oscar H. Davis: He did not believe petitioner's statements --
Hugo L. Black: But suppose he didn't, suppose -- suppose he'd said, “I don't believe a word you've said.” Could you then deprive him of his citizenship on the ground that he didn't have to go when he was ordered?
Oscar H. Davis: Yes, if he doesn't make any efforts to get out of there. If he doesn't make efforts to come back to this country to protest, of course --
Hugo L. Black: The burden -- the burden would be on him to show that. You --
Oscar H. Davis: The burden would be on him to do those things and he showed that he did not do them.
Hugo L. Black: I'm talking about the trial where you (Voice Overlap) --
Oscar H. Davis: Well --
Hugo L. Black: -- your citizenship.
Oscar H. Davis: -- I think there's a difference, Mr. Justice Black, between the burden of what he must do in order -- in relation to voluntariness. As to those things, there was no question of burden of proof because he testified he did not do those things. He himself testified on direct and cross-examination that he did not do any of these things.
Hugo L. Black: Well, without more you think that was enough for a judge to make a finding, that he went over there for the deliberate purpose of getting in the army?
Oscar H. Davis: I do, Mr. Justice, and I particularly think it was enough to make -- to make a finding when he went over there, that he did not go into the Japanese Army under duress. But I said I would answer your question on -- in two parts --
Hugo L. Black: Yes.
Oscar H. Davis: -- and my first answer is that Judge Byrne, regardless of the burden of proof, held against the petitioner and we believe the Court of Appeals, regardless of the burden of proof, affirmed. Though the Court of Appeals did say explicitly that the burden of proof was on petitioner. We think if you read their opinion you will see that --
Hugo L. Black: Do you think that's right?
Oscar H. Davis: No. Then I'm going to go on to that -- to the second thing. As far as burden of proof is concerned, if I can make a distinction between the ultimate burden of proof, that is if the judge finds that the facts of the evidence is equally balanced, for whom shall he decide? That's the ultimate burden of proof. And the burden of going forward with the evidence, which party has the -- the duty and obligation of initiating consideration of a certain matter and presenting some prima facie evidence in relation to it? Because we think that there are differences in relation to that. And as I go through the steps of the -- of the trial, it may seem like a tennis match in which the balls are shifting backward and forward but we think that's the correct approach.
William O. Douglas: Of course in the Kawakita case, we went pretty far in -- I just -- to refresh my recollection a little, in holding in a case of a dual citizenship, the person who does an act is consistent with one of those citizenship status -- status of one those rights. It doesn't necessarily repudiate the other. That was a -- that was a bobtail court and there were -- and there was a 4-to-3 decision that we did (Voice Overlap) --
Oscar H. Davis: We think the Kawakita case is quite different, Mr. Justice.
William O. Douglas: Well, it wasn't. It was a criminal prosecution.
Oscar H. Davis: More than that, there were specific questions asked. There was a special -- special verdicts in -- in that case. And the jury was asked, did Kawakita ever think that he had given up his American nationality and on the basis of evidence which this Court held was sufficient that the jury returned a verdict? No, he never thought that he'd given up his American nationality. And the jury was also asked -- was also told that if Kawakita did anything -- that Kawakita had to be found to have done something in order to commit treason against the United States, which was the issue in that case, he had to -- he found to have done something which was not required of him more than was required of him of -- of -- by Japanese law and the jury made that specific finding.
William O. Douglas: But expatriation was the threshold question.
Oscar H. Davis: Well, expatriation was the threshold question, what you had before us -- before you, findings of fact that he had never intended to expatriate himself and -- and that he -- findings of fact that no duress was exercised upon him. Still the petitioner in that case raised the issue of expatriation and it was very important question which was mooted here. I -- I mean to lay the case aside because there were findings of fact in that case made by a jury, a special verdict which were far different from the cases -- from the case which is before you now. On the question of burden of proof, the petitioner is the plaintiff, as an ordinary plaintiff, he has the -- what you might say the long range burden of proof of showing that he's a citizen of the United States. Well, he proved that he was born in California and if nothing more appeared, that's all there was, he would certainly be entitled to a judgment. The -- the burden would then shift to the United States and we think that the burden is clearly on the United States of showing that he committed an objective act of expatriation. That is that he went into the Japanese Armed Forces while a dual national, while a Japanese of Japan. But that was proved. It was proved because petitioner himself, anticipating what the Government could easily prove himself admitted that he went into the Japanese Armed Forces and that he was a national of Japan. So you have a case where -- on the one hand he's proved he's -- he was born in California, on the other hand he's proved that he served in Japan while a national of Japan. If nothing more appeared, we would think that the -- our view is that nothing more appeared that the Government should have -- should have the judgment because we think that the burden, at least the burden of going forward with -- with showing issues of -- with showing matters of duress goes to the petitioner. He's the one who knows that if he entered the Japanese Army, he did it under duress. And so we say --
Hugo L. Black: Suppose it was not under duress, I'm -- I'm interested in the viewpoint, but he had a dual citizenship and he was under that -- he didn't respond to either offenses that's all in.
Oscar H. Davis: Congress -- well, the statute says that -- that you are expatriated, you lose your nationality if you -- as a dual citizen entered the armed forces of the other country. Now --
Hugo L. Black: You (Voice Overlap) --
Oscar H. Davis: -- the issue of constitutionality may be there but the statute is clear on -- on that. Coming back --
William J. Brennan, Jr.: And -- and there includes, I take it, drafted?
Oscar H. Davis: In our view, yes. That Congress is going to pass the statute must have known --
William J. Brennan, Jr.: Is that an issue in the case?
Oscar H. Davis: The issue in the case is whether it should be construed that way. If I could say this on that point, Mr. Justice Brennan, Congress passed the statute in 1940. It was well known that throughout the world, there was conscription. In fact, most of the people who would be caught by the net of the statute would be drafted or -- or conscriptees. It was true of all the countries, almost all the countries which had dual nationality.
William J. Brennan, Jr.: The other side argued the other way?
Oscar H. Davis: The other -- yes. The other side argues that you should nevertheless construe the statute as not relating to a dual national who is conscripted. Now, we admit that if it's found that the man though conscripted was -- that the man involuntarily entered the forces, the -- the statute does not apply then because it has been construed and we think correctly as applying only to a man who voluntarily entered. Our difference is that we think that mere proof of conscription alone does not show involuntariness. And that -- that's the issue which is at -- really at the heart of this case.
Hugo L. Black: Would that be true in this country?
Oscar H. Davis: Well --
Hugo L. Black: (Voice Overlap) --
Oscar H. Davis: -- it would depend of what --
Hugo L. Black: There's a quite difference between the voluntary and the constituted.
Oscar H. Davis: We -- Mr. Justice Black, we're not saying that if the man did what he think -- we think he should have done, gone to the Consulate, make protest, try to come back to the country, he couldn't do it. There are many cases which the Government has not appealed and brought to this Court where the man shows that he went to the Consulate. He said, “I want -- I don't want to serve in the army of the foreign country." And they said, “There's nothing we can do about it.” He said, “I want to come back to the United States.” They say, “We don't have any funds to give to you,” and so forth. He then goes into the army and we would not be here urging that he was -- that he was -- a voluntary entrance into the Japanese Army. We are here urging this position because this man did none of those things which in all the other cases those people did. I don't mean they did everyone, but I think it's fair to say that there is no appellate decision with relation to duress and conscription which has as bare a record as this one. In all the other cases in which the Court has held that a man who was conscripted into the army acting under duress, there was always some showing of an attempt to protest or -- or an attempt to inquire or an attempt to come back to the United States or something rather like that. In this case, there is nothing except his protestations of fear, weak as they were even stated and which were disbelieved by the trial court.
William J. Brennan, Jr.: Well, in that -- in that connection then do you accept your adversary's view of the record that there's absolutely nothing to indicate that he had any knowledge whatever that by serving in the Japanese Army he risked forfeiting his American citizenship?
Oscar H. Davis: Yes, Mr. Justice Brennan.
William J. Brennan, Jr.: You do agree?
Oscar H. Davis: Yes. There -- there's nothing in the record to show that. But I would also like to point out that this Court held in the Savorgnan case in 1950 in -- in 338 U.S., that it is not a concomitant of an act of expatriation that the person who commits it knows that he's -- has the subjective intent that he expatriate himself or that he knows --
William J. Brennan, Jr.: No, but might that not bear on the question whether in fact conscription, even in the sense you suggested, was voluntary?
Oscar H. Davis: It might have some bearing on it but we think it is overborne in this case by the -- by -- by the history -- his own history, the type of person he is and what he did not do. The judge so found --
William J. Brennan, Jr.: I'm just wondering whether what he did not do is very meaningful in a situation in which it doesn't appear they have any knowledge of the consequences of what was failure to do might mean.
Oscar H. Davis: It's meaningful, Mr. Justice Brennan, because if the natural thing for a person who's abroad, who's only going to study and -- and visit as he says, not to want to serve in -- in the armed forces particularly at a period of time in which this man, who was a graduate of the University of California, must have known there was world tension whether he knew there was going to be a war between Japan and United States or not. And it's meaningful that in that situation, in those circumstances, he did not do anything which all the other persons involved in this type of case did do or he didn't make proof of -- of more direct terror and fears as a result surveillance in Japan. He said he had no contact and all of that. In other words, our view is that this record is about the barest record that we have seen in a long time with relation to a claim of -- of duress by a man who was --
Hugo L. Black: But why didn't he prove duress when he proved he's conscripted? I could get to where the arguments. But after he's conscripted to somewhere, accused it or ordered by statute. He tried to get out but he's already in, he's in by being conscripted.
Oscar H. Davis: Oh, he wasn't conscripted. He -- between June --
Hugo L. Black: I thought you said he was.
Oscar H. Davis: Yes, but he -- there was a period of time, June 1940 is when he knew he would be drafted, that's when he had his physical examination.He was not actually inducted into the army until nine months later in March 1941. What I'm talking about is what he did not do during this nine-month period.
Hugo L. Black: Well, you say after he was notified, he was going to be conscripted?
Oscar H. Davis: That -- that's -- that --
Hugo L. Black: He should have immediately moved.
Oscar H. Davis: He should have done something. He did nothing and that's on his own testimony.
Earl Warren: Could he have refused to be examined?
Oscar H. Davis: I -- I doubt that, but I think that he -- after the examination --
Earl Warren: He hadn't -- if he hadn't, would they put him in jail?
Oscar H. Davis: I don't know. They might have proceeded against him. We're not saying he should have refused to -- to be examined. I'm not saying he should have been refused to be inducted, Mr. Chief Justice. I am saying that he should have done some utterly other things which in all the other cases have been indicia indicative of a -- of a non-voluntary -- of non-voluntary entrance into a foreign army.
Earl Warren: But might not the country that a man is in have a lot to do with whether he would -- he would go now and seeking information? If he was in Nazi, Germany, it might be a lot different from whether he was in -- in the South American Republic or some other country. Being in Japan might make a lot of difference too in view of the -- the attitude of the Government and the Japanese people at that particular time.
Oscar H. Davis: He testified he was not in direct contact with the police. He testified that he made no effort to find out anything, not only from the Japanese but from Americans except from some Nisei friend of his who gave him hearsay opinion. He did not go to the Consul. He was an American citizen travelling on an -- on American passport. There would be nothing to prevent his going up to the American Consulate, the American Embassy and entering in there for whatever business that -- that he might have.
Earl Warren: No, except that he -- he might lose his head by it but (Voice Overlap) --
Oscar H. Davis: They wouldn't -- the Japanese wouldn't even know why he went to the American Embassy. He was travelling on an American passport. He could go there to renew the passport. They wouldn't even know why he went there.
Hugo L. Black: I've heard sometimes they do.
Earl Warren: [Laughs] Yes, indeed.
Tom C. Clark: You say other people (Voice Overlap) --
Oscar H. Davis: We hope not.
Tom C. Clark: You said other people went there?
Oscar H. Davis: In other cases --
Tom C. Clark: Other Niseis?
Oscar H. Davis: There are other cases of Niseis. This -- I'm referring to reported cases. These are -- it's not in the record in this case. They were reported opinions which indicate that other people did go and did make inquiry.
Earl Warren: At what -- in what years, do you know? Is it in 1941?
Oscar H. Davis: Even later than that, even later. This is a relatively early period in -- in relation to these matters. Inquiry was made even at a later time. After all, Pearl Harbor wasn't until -- almost a year after he was inducted in the army. He was inducted in March 1941 and Pearl Harbor didn't take place until --
Hugo L. Black: Do you mean it was a year before Pearl Harbor that you say he should have known we were going to get in a war?
Oscar H. Davis: No, I don't say that -- that he should have known we would get -- get into the war. I don't even think that Judge Byrne said that. I -- all I say is that he should have known that there was tension in the world that the Japanese were fighting, that there was a world situation which could go up like (Inaudible). Our position, if I can state it in a minute that I have today, is that he has the burden of going forward of showing duress and that by proving conscription alone which is all that he proved here because the judge did not believe his other statement, by proving conscription alone, he does not carry the burden of -- of making a prima facie case of duress.