propriate time after these rules had taken effect, would issue an order amending this particular rule to strike out the phrase to which objection is made, not because it is necessary to produce the effect required, but merely because somebody has raised an argument about it.

In reaching their conclusions the counsel for the labor organizations might be satisfied if in the proposed published edition of the notes an addition is made under rule 65 which expressly states that the provisions of those statutes are not affected in any particular. Indeed, so far as the notes are concerned, I would be glad to have them write their own ticket on the point. While these notes would not be legally binding on the Supreme Court, such a note would explicitly declare the purpose of the advisory committee in drafting the rule, and as a practical matter I am sure would be controlling in the particular case. The notes are now silent on the point, for the simple reason that we thought the purpose of the committee to preserve these statutes, and not to say anything in the rules in conflict with them was obvious on the face of the rules.

Very truly yours,

Hon. HATTON W. SUMNERS,

Chairman, Committee on the Judiciary,

WILLIAM D. MITCHELL.

WASHINGTON, D. C., April 15, 1938.

House of Representatives, Washington, D. C.

DEAR JUDGE SUMNERS: I have introduced a bill (H. R. 10187) to make effective in the district court for the Territory of Hawaii rules promulgated by the Supreme Court of the United States governing pleading, practice, and procedure in the district courts of the United States, in order to remove any uncertainty as to the application to Hawaii of the new rules of Federal procedure prescribed for the United States district courts.

The attached letter from the secretary for the advisory committee on rules for civil procedure indicates that Hawaii may not be so included unless special legislation to do so is enacted.

I am in receipt of advices by wire from the judges of the United States District Court of Hawaii and from the Bar Association of Hawaii urging that any uncertainty as to the extension of the new rules of procedure be removed. For that reason I request favorable consideration by your committee on H. R. 10187. May I also ask that this letter and its enclosure be incorporated in the record of the committee's hearings and recommendations on this subject. With warmest personal regards, I am

Sincerely yours,

S. W. KING.

Hon. S. C. HUBER,

United States District Judge, Honolulu, Hawaii.

APRIL 4, 1938.

MY DEAR JUDGE HUBER: Under date of December 1, 1936, I wrote you that the new rules of Federal procedure prescribed by the Supreme Court of the United States, applicable to civil actions in the district courts of the United States, would automatically apply to the United States District Court for Hawaii by virtue of a provision in the organic act of the Territory of Hawaii, and Mr. Mitchell, chairman of the advisory committee, informs me that under date of January 13, 1937, he gave similar assurances to Mr. J. Donovan Flint, secretary of the Bar Association of Hawaii.

A situation has arisen which throws doubt on the correctness of these assur

ances.

The act of June 19, 1934, under which these rules are drawn, gives the Supreme Court authority only to prescribe rules of practice for the "district courts of the United States," and the quoted phrase does not include the district courts for the Territories. The advisory committee was of the opinion, however, that the provision of the organic act of Hawaii to the effect that the United States District Court of Hawaii should proceed in the same manner as district courts of the United States would automatically make these rules operate in Hawaii. Accordingly, after writing rule 1, which prescribes that the rules shall govern "the procedure in the district courts of the United States," the advisory committee added note 2, which reads as follows:

"2. The expression 'district courts of the United States' appearing in the statute authorizing the Supreme Court of the United States to promulgate rules

of civil procedure does not include the district courts held in the Territories and insular possessions. The rules, however, by virtue of the organic acts of the Territories and insular possessions will apply to the district courts of Hawaii and Puerto Rico, but will not apply to the district courts of Alaska, the Virgin Islands, and the Canal Zone. Hawaii: U. S. C., title 48, sec. 642 (jurisdiction of district courts; authority of officers); sec. 645 (appeals). Puerto Rico: U. S. C., title 48, sec. 863 (district of Puerto Rico; officers; jurisdiction; vacancies); sec. 264 (appeals; removal of causes; certiorari; terms of district court; use of English language); sec. 867 (juries in district court; qualifications). Alaska: U. S. C., title 48, sec. 23 (Constitution and laws of the United States extended); see sec. 90 (laws submitted to Congress); see also the complete code of civil procedure enacted under these statutes, Alaska Compiled Laws (1933) title 3. The Virgin Islands: U. S. C., title 48, sec. 1392 (local laws continued; courts; appeals); see also sec. 1405z (judicial branch; divisions of district court; terms; rules of practice; process). The Canal Zone: U. S. C., title 48, sec. 1344 (district court generally rules of practice)."

We have recently been engaged in printing these notes for distribution to the bench and bar, and were proposing to print note 2 as above written. It seems that the attention of the Supreme Court was called to note 2 because that Court has recently been considering the meaning of the phrase "district courts of the United States" in connection with the case of Robert K. Mookini and Lee Sau Chong, petitioners, v. The United States of America, No. 319, October Term, 1937, decided February 28, 1936, and thereupon the advisory committee received a suggestion from the Court that we strike out of note 2 the assertion that the rules would apply to Hawaii and Puerto Rico by virtue of the organic acts of those Territories. The Court has not advised us what their views are on the point, but the fact that the suggestion was made to strike out this part of the note, immediately raises the inference that the Court either thinks the rules will not apply in Hawaii and Puerto Rico, or at least believes there is doubt about it. It had not occurred to the advisory committee that Congress intended, when enacting the Act of June 19, 1934, to change the policy effected by the organic acts of these two Territories, which was to make the practice and procedure in the district courts of these Territories conform to the practice in the district courts of the United States. Possibly the Supreme Court thinks that because the Act of June 19, 1934, limits the Supreme Court to making rules for the district courts of the United States an inference arises that these rules are not to govern in Hawaii and Puerto Rico, and that there is an implied repeal to that extent of the provisions in the organic acts prescribing conformity. However that may be, it is obvious that a doubt exists as to whether these rules will apply in Hawaii, and as long as that doubt exists it could only be settled in a litigated case carried to the Supreme Court of the United States, and meanwhile the bench and bar of Hawaii would be in the greatest uncertainty as to what their practice should be. This would present an intolerable situation.

In view of the fact that officers of the advisory committee gave assurances that the rules would apply in Hawaii and you are doubtless relying on that assurance, we feel it is our duty to inform you of the situation so that legislation may be enacted at the present session of Congress which will clear up this situation and remove any uncertainty. We have drafted and enclose a form of bill which, if passed, would, we think, remove the uncertainty and make the new rules applicable and govern proceedings in the District Court of Hawaii and appeals therefrom in the same manner as they will operate in the United States.

A copy of this letter has been handed to the Delegate from Hawaii, and a copy has been given to the Attorney General of the United States, so that if the bench and bar of Hawaii want this legislation enacted, the Hawaiian Delegate will be fully informed of the situation.

The press has recently been publishing statements of Democratic leaders in Congress indicating that they hope for adjournment of Congress between May 1 and June 1, so that prompt action seems advisable.

Very truly yours,

EDGAR B. TOLMAN, Secretary of the Advisory Committee.