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RUTLEDGE, J., dissenting.

suitable device" to "develop the simple harmonic force impressed upon the vertical wire" might be taken, in other context, possibly to suggest magnifying the impressed force by inserting a device for that purpose in the open circuit and therefore to come more closely than the other passages to suggesting Marconi's idea. But such a construction would be wholly strained in the absence of any other reference or suggestion in the long application to such a purpose. Standing wholly alone as it does, it would be going far to base anticipation of Marconi's idea upon this language only. The more reasonable and, in view of the total absence of suggestion elsewhere, the only tenable view is that the language was intended to say, not that Stone contemplated including any device for tuning in the open circuit, but that he left to the mechanic or builder the choice of the various devices which might be used, according to preference, to create or "develop," in the closed circuit, the force to be impressed upon the antenna.

Finally, Stone was no novice. He too was "a very expert person and one of the best men in the art." National Electric Signalling Co. v. Telefunken Wireless Tel. Co., 209 F. 856, 864 (D. C.). He knew the difference between tuned and untuned circuits, how to describe them, and how to apply them when he wanted to do so. He used this knowledge when he specified including means for tuning in his closed circuit. He did not use it to specify similarly tuning the open one. The omission, in such circumstances, could hardly have been intentional. In my opinion he deliberately selected an aperiodic aerial, one to which the many receiving circuits his application contemplated could be adjusted and one which would carry to them, from his transmitter's tuned periodicity and by its force alone, what it sent forward. In short, Stone deliberately selected an untuned antenna, a tuned

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RUTLEDGE, J., dissenting.

320 U.S.

closed circuit, and controlled the periodicity of both, not by independent means in each making them mutually and reciprocally adjustable, but by impressing upon the untuned antenna the forced periodicity of the closed circuit.

It may be that by his method he attained results comparable, or nearly so, to those Marconi achieved. The record does not show that he did so prior to his amendment. If he did, that only goes to show he accomplished in consequence what Marconi did, but by a different method. That both had the same "broad purpose" of providing a high degree of tuning at both stations, and that both may have accomplished this object substantially, does not show that they did so in the same way or that Stone, by his different method, anticipated Marconi.

In my opinion therefore Stone's amendment was not supported by anything in his original application and should not have been allowed. As petitioner says, it added the new feature of tuning the antenna and in that respect resembled the amendment of a Fessenden application "to include the tuning of the closed circuit." National Electric Signalling Co. v. Telefunken Wireless Tel. Co., supra. The amendment here should receive the same fate as befell the one there involved.

Stone's letters to Baker, quoted in the Court's opinion, show no more than his original application disclosed. There is no hint or suggestion in them of tuning the antenna circuits "independently" as Marconi did. And the correspondence gives further proof he contemplated introducing the inductance coil (or a device equivalent in function) into the closed circuit, but expressed no idea of doing the same thing in the open one.

In my opinion therefore the judgment should be reversed, in so far as it holds Marconi's broad claims invalid.

Syllabus.

HIRABAYASHI v. UNITED STATES.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 870. Argued May 10, 11, 1943.-Decided June 21, 1943.

1. Where a defendant is convicted on two counts of an indictment and the sentences are ordered to run concurrently, it is unnecessary on review to consider the validity of the sentence on both of the counts if the sentence on one of them is sustainable. P. 85.

2. Pursuant to Executive Order No. 9066, promulgated by the President on February 19, 1942 while the United States was at war with Japan, the military commander of the Western Defense Command promulgated an order requiring, inter alia, that all persons of Japanese ancestry within a designated military area "be within their place of residence between the hours of 8 p. m. and 6 a. m." Appellant, a United States citizen of Japanese ancestry, was convicted in the federal District Court for violation of this curfew order. Held:

(1) By the Act of March 21, 1942, Congress ratified and confirmed Executive Order No. 9066, and thereby authorized and implemented such curfew orders as the military commander should promulgate pursuant to that Executive Order. P. 91.

(2) It was within the constitutional authority of Congress and the Executive, acting together, to prescribe this curfew order as an emergency war measure. P. 92.

In the light of all the facts and circumstances, there was substantial basis for the conclusion, in which Congress and the military commander united, that the curfew as applied was a protective measure necessary to meet the threat of sabotage and espionage which would substantially affect the war effort and which might reasonably be expected to aid a threatened enemy invasion. P. 95.

(3) The curfew order did not unconstitutionally discriminate against citizens of Japanese ancestry. P. 101.

(a) The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. P. 100.

(b) The curfew order as applied, and at the time it was applied, was within the boundaries of the war power. P. 102.

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(c) The adoption by the Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not to be condemned as unconstitutional merely because in other and in most circumstances racial distinctions are irrelevant. P. 101. (d) An appropriate exercise of the war power is not rendered invalid by the fact that it restricts the liberty of citizens. P. 99. (4) The promulgation of the curfew order by the military commander was based on no unconstitutional delegation of legislative power. P. 102.

The essentials of the legislative function are preserved when Congress provides that a statutory command shall become operative upon ascertainment of a basic conclusion of fact by a designated representative of the Government. The Act of March 21, 1942, which authorized that curfew orders be made pursuant to Executive Order No. 9066 for the protection of war resources from espionage and sabotage, satisfies those requirements. P. 104. Affirmed.

RESPONSE to questions certified by the Circuit Court of Appeals upon an appeal to that court from a conviction in the District Court upon two counts of an indictment charging violations of orders promulgated by the military commander of the Western Defense Command. This Court directed that the entire record be certified so that the case could be determined as if brought here by appeal. See 46 F. Supp. 657.

Messrs. Frank L. Walters and Harold Evans, with whom Messrs. Osmond K. Fraenkel, Arthur G. Barnett, Edwin M. Borchard, Brien McMahon, and William Draper Lewis were on the brief (Mr. Alfred J. Schweppe entered an appearance), for Hirabayashi.

Solicitor General Fahy, with whom Messrs. Edward J. Ennis, Arnold Raum, John L. Burling, and Leo Gitlin were on the brief, for the United States.

Briefs of amici curiae were filed by Messrs. Arthur Garfield Hays, Osmond K. Fraenkel, and A. L. Wirin on behalf

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Opinion of the Court.

of the American Civil Liberties Union; by Mr. A. L. Wirin on behalf of the Japanese American Citizens League; and by Mr. Jackson H. Ralston on behalf of the Northern California Branch of the American Civil Liberties Union,-in support of Hirabayashi; and by Messrs. Robert W. Kenny, Attorney General of California, I. H. Van Winkle, Attorney General of Oregon, Smith Troy, Attorney General of the State of Washington, and Fred E. Lewis, Chief Assistant and Acting Attorney General of the State of Washington, on behalf of those States,urging affirmance.

MR. CHIEF JUSTICE STONE delivered the opinion of the Court.

Appellant, an American citizen of Japanese ancestry, was convicted in the district court of violating the Act of Congress of March 21, 1942, 56 Stat. 173, which makes it a misdemeanor knowingly to disregard restrictions made applicable by a military commander to persons in a military area prescribed by him as such, all as authorized by an Executive Order of the President.

The questions for our decision are whether the particular restriction violated, namely that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p. m. and 6:00 a. m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment.

The indictment is in two counts. The second charges that appellant, being a person of Japanese ancestry, had on a specified date, contrary to a restriction promulgated by the military commander of the Western Defense Command, Fourth Army, failed to remain in his place of resi

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