said day by said court to forfeit all his stock of liquor seized by the police and be confined for 5 years at hard labor in the city and county jail of the city and inty of Honolulu, T. H.; and 2. Whereas the said liquor duly was forfeited, and the said Thomas A. Hanley y was confined in said jail on or about January 3, 1942, to serve said sentence confinement at hard labor, and now is and has been confined in the said jail at all es since said date; and 3. Whereas the said Thomas A. Hanley has had an excellent record as a prisoner ile confined as aforesaid; and Whereas it is believed to the best interest of the United States that the said omas A. Hanley be released from said jail, effective this date, so that he may age in work that will promote the national defense of the United States, and the al defense of the Territory of Hawaii; i. Now, therefore, it appearing necessary, it hereby is ordered that so much the sentence of confinement at hard labor of the said Thomas A. Hanley as ains unexecuted hereby be, and the same is suspended, and that he be released m custody and confinement, subject to and upon the following terms and condi 18: a) That the said Thomas A. Hanley, during the remainder of the period of 1 sentence of confinement at hard labor, violate no law, either Federal, Terriial, or municipal; nor violate any order or regulation of the Military Governor he Territory of Hawaii; and it is further ordered that in the event that the 1 Thomas A. Hanley shall comply with the said terms and conditions that execution of the unexecuted portion of said sentence shall be suspended permatly; otherwise the said Thomas A. Hanley shall satisfy said unexecuted portion aid sentence in full. . And it also appearing necessary, it hereby further is ordered that the said omas A. Hanley be released from custody and confinement in said jail on this e; and the sheriff, city and county of Honolulu, T. H., and the provost marshal partment of Hawaii, hereby are authorized, directed, and ordered to release said Thomas A. Hanley from their custody and confinement, and from said on September 16, 1942, all subject, however, to the terms and conditions set h in 5 (a) above. By order of the Military Governor: THOMAS H. GREEN, Brigadier General, Army of the United States, Executive HONOLULU, T. H., October 20, 1945 The CHAIRMAN. Give your name to the reporter. Ir. SARTAIN. Lee Edgar Sartain, 1170 Nuuanu Street, Honolulu, T. H. The CHAIRMAN. Mr. Trask, I don't mean to preclude you from pursuing any By Mr. TRASK: . You are the brother-in-law of Thomas A. Hanley?-A. Yes, sir. . And he is the claimant in this suit?-A. Yes. . And you are assisting him with this power of attorney that was executed in many? A. Yes. And Mr. Hanley, your brother-in-law, is still in Germany: is that true?That's right; the last time I heard of him. . And this affidavit, signed by first lieutenant, Quartermaster Corps, Three dred and Thirty-first Quartermaster Depot Company, dated July 6, 1945, the handwriting of Mr. Hanley, your brother-in-law and claimant?—A. Yes. r. TRASK. I offer this in evidence. Vitness excused.) Claimant's exhibit 1 was received in evidence.) r. TRASK. Now, gentlemen, when war struck here and the resulting confusion so forth, there were several orders issued by the Military Governor. General er 2, dated December 7, 1941, closed all saloons: All dealers in intoxicating liquor, wine, or beer will immediately stop sale of osition thereof, either by drink or in any other quantity. "This order will remain in force until further notice.' I offer this in evidence. (Claimant's exhibit 2 was received in evidence.) Mr. TRASK. Later on, December 20, 1941, the Military Governor issued General Order 37, which directed all dispensers of intoxicating liquor to submit to the Military Governor not later that 12 o'clock 24th day of December 1941 a complete inventory of all intoxicating liquor. Failure to submit the inventory will be subject to a fine, imprisonment, or a seizure of the intoxicating liquor and forfeiture of the same. I offer this in evidence. (Claimant's exhibit 3 was received in evidence.) MR. TRASK. Now, with that situation Thomas Hanley came to Honolulu from San Francisco in July 1941 with his wife. He came out here with some thousands of dollars to invest money, pooled from relatives, including his parents and sister-in-law and brother-in-law-which refers to Mr. Sartain here-some money, and purchased a business here called the Lido Cafe in the sum of $49,175 Now I'm reading from the official record of the Honolulu Liquor Commission, and Mr. Sartain here being the inspector The CHAIRMAN (interposing). Sartain? Mr. TRASK. No, pardon me. Irving Niemeyer, a witness in behalf of the claimant, being duly sworn, testified as follows: By Mr. TRASK: Q. What is your official position?—A. I am inspector and investigator for the city and county liquor commission. Q. And were you authorized by proper authority to bring this file before you, and that is a proper file for the official records of the Honolulu Liquor A. It is and it is the proper file. Q. And reading from the agreement dated November 12, 1941, shows from the official file of the Honolulu Liquor Commission that Mr. Hanley bought these premises, Lido Cafe, from G. D. Strauss; that at that time there was determined the value of the liquor at $22,000. There was no actual inventory made at that time. The $22,000 was set up in this manner: Sale price of $22,000 for the inventory of all liquor, wines, beers, and other beverages. However, that the said inventory which is now being taken by the said seller and buyer shall be finally ascertained and a copy thereof to be attached here and made a part of the order as being a value in excess of the said inventory of the sale price of $22,000. Then that certain amount shall be added to the $22,000. Then if it was found that the inventory showed that it was less than $22.000. that certain amount or deficiency would be deducted from the $22,000. That's the way the agreement was entered into. That's important, gentlemen. because on January 3, Mr. Hanley was arrested and proceedings held in the provost court on January 12, 1942, at which time Hanley was charged with, first, being a licensed dealer of liquor at Honolulu on December 30, 1941; the accused did wrongfully dispose of two bottles of Calvert whisky in violation of General Order No. 2 issued by the Military Governor. The second charge, being a licensed dealer of intoxicating liquor of Honolulu, the accused failed to file with the Office of the Military Governor a complete inventory of all stocks in his possession as required by General Order 37 of the Military Governor. To the first complaint that he did wrongfully dispose of liquor, he pleaded guilty. To the second charge, that he submitted a wrong inventory, he pleaded not guilty. The findings of the court, however, in that second charge were that he was guilty. As a result of the trial the liquor was seized altogether and forfeited. And Mr. Hanley was confined to imprisonment and sentenced to hard labor for 5 years. Now, the question first, of course, is of jurisdiction and authority of the Military Governor, and is, I think, before the Supreme Court in the case of WhiteMr. White. But assuming that the authority was correct, our position-I might say Mr. Hanley was imprisoned only until about the following September. He was in there about 9 months and he was released. The CHAIRMAN. Was he represented at that provost court? Mr. TRASK. He was represented, Mr. Chairman, but we have our-we all have our impressions about the proceedings. It was a gag. Permit me to say that some people said if you didn't plead guilty you were found guilty anyhow. The CHAIRMAN. That statement, of course, does not add anything to your claim. Mr. TRASK. No; it does not. On September 16, 1942, the order signed by Brigadier General Green had suspended the hard labor and imprisonment of . Hanley, and then Mr. Hanley went into the Army, and, as his brother-intestified, is now in Germany in the Army. I would like to submit this. Congressman COLE. That order has never been set aside? Mr. TRASK. No; it is still in existence. I might say that I sought to have→→→ The CHAIRMAN. Excuse me, which order do you refer to? Congressman COLE. The order of forfeiture? Mr. TRASK. No; it's never been set aside at all. Congressman COLE. Are you asking us to do that in effect? Mr. TRASK. Our claim is based on that claim of the liquor that was confiscated. The CHAIRMAN. What happened to it? Mr. TRASK. Well, it was just confiscated. Congressman COLE. I don't know whether I'm jumping ahead, but on what is would you ask us to set aside an order of a court? Ir. TRASK. May I submit this? Claimant's exhibit 4 was received in evidence.) Mr. TRASK. Now, in answer to your question, this is the inventory taken from files of the liquor commission and certified by Josephine V. Lee as the clerk is inventory of liquor was removed from the Lido Cafe January 11, 1942, by e United States Army. Inventory taken by Inspectors Robertson and Collins, Honolulu Liquor Commission, January 1942. Inasmuch as this matter was ught to my attention only last night, Mr. Chairman and gentlemen, I could and am not prepared in the manner that I want. I wanted to ascertain, of rse, the precise value of these liquors that were confiscated. I will submit for record, which would include taxes which are not shown here, whether the m is 20,000 or 23,000. I cannot say at this time. I'd like to leave that open further ascertainment. And I'd like to submit this as exhibit 5, if you pleaseinventory actually forfeited under the order of the provost court. The CHAIRMAN. We will take it. Claimant's exhibit 5 was received in evidence.) Mr. TRASK. I have here another memorandum that I'd like to have included an exhibit, exhibit 6. This is a letter from W. H. Loper, who was the director he Alcohol Unit when the Military Governor came into existence, showing the or that was confiscated. Claimant's exhibit 6 was received in evidence.) Congressman COLE. Now, Mr. Trask, I would suggest as a matter of evidence t you submit additional data Mr. TRASK I will. Congressman COLE. As far as I am concerned, I'd like to have you come a le further on my question. Mr. TRASK. Our situation is just this: Tom Hanley was an American citizen was of Irish-English descent, age 32. He and his family, wife and two children I a stepchild, were residents of Honolulu at the time of the apprehension. was living at 2053 Koula Street, Honolulu. Now, he was an American citizen, nificant because of this case of Miller v. United States, which was decided in 1. It was a Confederate case. It is a leading case on the subject, an intertation of the eighth amendment and the fifth and sixth amendments in this y: He was an avowed Confederate soldier. He was both interested in being Army officer and a Navy officer in the Confederacy at the same time. He sa Virginian. He was also, of course, an American citizen. And his part in revolution was of such a character that under the war powers his stock in the timore & Ohio Railroad Co. was confiscated. And he hollered as high up as Supreme Court. And his property was taken without due compensation. e Supreme Court held that these acts under which the bonds of Mr. Miller e seized and confiscated were war powers; that they were not under and were protected by the due process of the Constitution. The CHAIRMAN. Mr. Trask, is it your theory that if the writs are sustained in se pending cases that decision will benefit your claim? Mr. TRASK. Pardon me? Congressman Cole. The White case Mr. TRASK. No, no, I say it would make our position—— The CHAIRMAN. Do you have the legal remedy to attack the authority of the vost court in an order of his imprisonment and confiscation of his property? sn't Judge Metzger sitting in there-in here? Mr. TRASK. No; all the courts were closed. You are asking a candid question may I give a reply? When Mr. Hanley was in prison, all courts of law were sed, absolutely shut tight. We had no court but the provost court, which was supreme court and the only recourse of justice. Even our supreme court was closed. Mr. Hanley was apprehended for these actions, which are only mis demeanors anyhow. And I might say that the question of disposition of liquor was this: Mr. Hanley giving to his barkeeper his one bottle of Calvert as a New Year's present and his cook the New Year's present. That was the nature of the disposition of and the character of the offense. The inventory was as slipshod as it was but under an agreement of sale which entailed 45 to 49 thousand dollars-and a checking of the offense will show that only 10 cases of whisky was off and 127 cases of beer. That's how much it was off. And I think the barkeeper and others will say that if you get within 10 percent of the stock worth at least 25 thousand, you're doing good. The question to answer your question, we didn't have any recourse. I might say as an attorney, in such a situation, I sought informally to find out with a judge as to whether or not in the Federal court here we can seek to initiate a petition of habeas corpus, and everybody was upset in the country and this judge, a friend of mine, said, "Young man, if you do that, the Congress will get so damn mad at Hawaii and everybody here, calling us traitors, that it would be disastrous for the community. And we just had to take it on the chin. I'm referring to Hanley-why we didn't ask for a writ of habeas corpus. The CHAIRMAN. Did you represent him at the provost court? Mr. TRASK. No, I did not. But after the imposition of sentence I came into the picture. Some attorneys were not going to court representing clients; they were just advising them as to what to do, because when you practically had two strikes against you-the defendant, if he was represented-maybe that impression was too vigorous. But I'm just being candid about what a person apprehended for misdemeanor could possibily do under the circumstances-nothing. The CHAIRMAN. Well, we have a general idea of your claim and you will have to supplement it anyway. And I dislike very much cutting you off. but I will really have to. Mr. TRASK. Well, I appreciate the committee's position, and it is a very vita matter, and I appreciate the courtesy of the committee. Mr. WILEY, from the Committee on the Judiciary, submitted the following REPORT [To accompany H. R. 3261 The Committee on the Judiciary, to whom was referred the bill (H. R. 3261) for the relief of Capt. Carroll C. Garretson, having considered the same, do now report the bill to the Senate favorably, without amendment, and recommend that the bill do pass. The purpose of the proposed legislation is to pay the sum of $3,916.10 to Capt. Carroll C. Garretson, Fort Bragg, N. C., in full settlement of all claims against the United States for Army pay and allowances from December 10, 1945, to August 15, 1946. STATEMENT The facts are fully set forth in House Report No. 1639, Eightieth Congress, second session, and need not be reprinted here. O |