The opinion of the court was delivered by: MCLAUGHLIN
This opinion is filed as a supplement to the oral ruling made at the close of argument May 18, 1950.
On March 31, 1949, the plaintiff, an Hawaiian corporation, filed this Section 9 suit under the Trading with the Enemy Act, 50 U.S.C.A.Appendix 9, to recover two parcels of real estate, personal property and a debt vested by the Custodian June 1, 1948, and also damages for wrongful seizure and detention. No evidence was tendered as to the personal property or the debt; nor was attention given by the parties to the question of damages, due, no doubt, to the fact that the Court ruled that the correctness of the Vesting Order was not open for judicial inquiry. United States v. The Antionetta, 3 Cir., 1945, 153 F.2d 138; The Aussa, D.C.D. N.J. 1943, 52 F.Supp. 927.
In May the Government moved for a summary judgment, as did also the plaintiff. Subsequently both motions were denied, and, the complaint being amended, the defendant, after losing a motion to dismiss, answered the amended complaint and the case moved into the area of depositions and discovery. Several trial dates were set and later changed, largely at the defendant's request. When, finally, a new firm trial date was set, a few days before it arrived the defendant announced that it was necessary for it to send one of its attorneys to Japan to collect evidence if it was to defend the suit properly. The Court refused to alter the trial date (March 27, 1950), but allowed Attorney Gross of the Alien Property Custodian's local office to go to Japan, with the understanding that the plaintiff would put in its case- Assistant United States Attorney Hoddick representing the Government- which was estimated to take some two weeks. It was said that Attorney Gross would be back in approximately ten days. This turned out to be like most estimates of time by attorneys, so when the plaintiff finished its case on April 11, 1950, the Court recessed the trial until May 3, at which time Attorneys Gross and Hoddick presented the Government's case. The trial ended May 17, with a ruling being made in plaintiff's favor on May 18, at the close of a two-day argument upon the facts and the law.
As detailed Findings of Fact will be found below, it will suffice to state the issue and the reasons for my decisions generally.
To appreciate the issue, these facts should be stated:
1. This Hawaiian eleemosynary corporation, the vast majority of whose members were alien Japanese, had been engaged in operating a Shinto shrine in Honolulu for year prior to December 7, 1941. On that date it ceased operations due to the suspicions engendered by the war and on account of orders of the Military Government then and thereafter until October 24, 1944, obtaining in Hawaii and possibly also due to the impact of the financial controls of the Treasury Department freeze orders. Very practically, it was not healthy to operate the shrine during those days, and besides plaintiff's Shinto priest was interned and repatriated to Japan, where he now resides. After the shooting war to the date of vesting plaintiff also did not function because of a continuation of the wide and commonly accepted belief that Shintoism was suspect, and, too, no priest was available, though his services seem not to have been vital.
2. The plaintiff's property consisted essentially of two parcels upon which was located the shrine, a social hall, and a house for the priest and his family. Due to the presence of a torii in front of the shrine and to its general appearance as well, it can be said that plaintiff's shrine looked like a state Shinto shrine in Japan.
3. At plaintiff's shrine three gods were enshrined, but as revealed by the expert testimony, plaintiff and its incompletely informed members did not even know their gods' correct names, nor why they worshipped them. The principal god enshrined was Kotohira, or, as it has come to be known, Kompira, a god of the sea. To this god the members probably felt indebted for their safe sea journey years ago from Japan to Hawaii. At a subsequent time, the god Hachiman, sometimes referred to as Shirasaki Hachimangu, was enshrined as a village god of many who came from the prefectures in Japan where the god was widely accepted as a village god. This god and its local followers were adopted by plaintiff primarily to increase the revenue. Hachiman, in addition, was popularly known in Japan as a god of war, but few of plaintiff's members seemed to know or were willing to admit this. On the other hand, Hachiman appears not to have been the only God of war in modern, pre-World War II state Shintoism in Japan. The third god also adopted by plaintiff was Otaki, who seems to have been a plain and simple village god in Japan. Since plaintiff and its members called 'Otaki Jinsha' he would appear to have been a god of a state Shinto shrine in Japan, for the word 'jinja' or 'jinsha' denotes a state shrine in Japan- before 1945 at least.
In addition to paying special but almost blind attention to these three gods- but not all of plaintiff's members worshipped all three or even two of them- plaintiff and its members for good measure also paid a general tribute of worship to the eight million gods in the Shinto pantheon of gods, which of course included Amaterasu Omikami, the sun goddess, deemed to be the Emperor's ancestor and hence a principal deity.
Though plaintiff's members followed a set prayer called an Oharae or a Norito taken from an ancient book of Shinto ritual, which in part at least was sanctioned by the Japanese government as to state shrines prior to 1945, followers of the god Kompira also had a very elementary set of rules, 'Friends of Worshiping Kotohirajinja,' which might be labeled a code of basic ethics.
Twice a year for each god, grand festivals were held to honor the particular god and to raise funds for the priest, and monthly prayer meetings were conducted at least as to the god Kompira. For the other two gods reverence clubs existed. Plaintiff's priest was trained as a state Shintoist in Japan, and was called by plaintiff to serve in Hawaii from a state shrine in Japan- the shrine of Hachimangu at Shirasaki, Yamaguchi Prefecture.
Plaintiff's witnesses (who to be sure for the most part could not agree as to the nature of their common beliefs or upon the reasons therefore- indeed some of them were reluctant to testify or testified grudgingly and were resentful of what the Government had done to plaintiff and to some of them by way of internment) generally stated they prayed for health, happiness, and peace. They admitted they respected both the Emperor of Japan and the President of the United States, and said their priest in his sermons, talks or addresses told them that while living in this their adopted country they must respect the President and obey the laws of the United States. Though the Japanese word for worship and respect seems hard to translate accurately, witnesses generally agreed that they respected the Japanese Emperor as a descendant of a god rather than as a god in living human form- even if some ignorantly claimed to worship him as a true god. One or two of the witnesses called by the Government conceded that prewar and before 1930 the Emperor's birthday in April was celebrated at and in the shrine by the priest and a few members, but that after 1930 the Japanese Consul took over this celebration matter. It does not appear that plaintiff's members ever celebrated the Emperor's birthday on any sizable scale at the shrine. It does appear that at the shrine the first five days of January were celebrated, as was done in Japan, too; that some of the members knew of the doctrines of Hakko-ichi-u- world brotherhood, one world- which in Japan the militarists had distorted to mean 'world under one roof' or Japanese supremacy and world conquest; and that a good deal of plaintiff's equipment may have been acquired from Japan. Indeed, by virtue of plaintiff having for the gods Hachiman and Otaki (but not for Kompira) a 'mitayma' (part of the god's spirit enclosed in a 'shintai,' a box in which was a silk bag obscuring the spirit from human eyes), which identical thing when in transit from another shrine- usually in Japan- was called a 'gobunrei,' plaintiff could be called a branch of a state shrine 'Hachimangu' in Japan and of 'Otaki Jinja' in Japan. However, even the Government expert agreed that the tie of a branch shrine to a parent shrine was simply one of love and affection and denoted no control of any kind of one by the other.
4. In Japan, at the time of Restoration in 1868, to unify the nation and foster respect for the Emperor and a spirit of nationalism, the Japanese government adopted Shintoism- Way of the Gods- as a tool to be sued to that end. It, therefore, took over control of this primitive mythology which had been developing since late in the 6th Century and which had been preserved against the inroads of Buddhism (incidentally most Shintoists are also Buddhists), and distorted it to its own ends. To preserve the illusion of freedom of religion, it declared in 1900 that Shinto was not a religion under the Constitution of 1889. It set up a Bureau of Shrines and a Bureau of Religions. The official cult was called Jinja Shinto, administered by the Bureau of Shrines which controlled and supported the Shinto priests and three classes of Jinja or state shrines. These classes whose names all ended in 'sha' or 'gu' were (1) Government Shrines, (2) National Shrines, and (3) official shrines under which came village shrines and 63,000 ungraded shrines. Under the Bureau of Religions came the supervision of Sect Shintoism (11 out of 13 Sect Shinto shrines oddly worshipped the same gods as were enshrined in Jinja shrines but in a religious way), Buddhism and Christianity. All good Japanese were expected to attend a state Shinto shrine where the ritual was prescribed by the government. No sermonizing was done there, that being left to the school and the home. A subject might also attend a Sect shrine or a church, where religious doctrine was expounded. In Sect shrines there was no state support and ministers were called teachers rather than priests.
As noted, to accomplish the ends desired by the militarists of Japan, Shinto was distorted and state Shrine loyalty became a test of patriotism and the false doctrine of Japanese supremacy and eventual world domination was ...