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256 F2d 728 Abe v. F Dyer

256 F.2d 728

Kazuhisa ABE et al., Appellants,
v.
John F. DYER, Appellee.

No. 15566.

United States Court of Appeals Ninth Circuit.

June 10, 1958.

Herbert Y. C. Choy, Atty. Gen., Morio Omori, Sp. Deputy Atty. Gen., Henry H. Shigekane, Deputy Atty. Gen., Territory of Hawaii, Heen, Kai, Dodge & Lum, George T. Nakamura, Honolulu, Hawaii, for appellants.

Hogan, Dyer & Rothwell, Honolulu, Hawaii, for appellee.

Before DENMAN, POPE and FEE, Circuit Judges.

PER CURIAM.

1

Abe, and the other members save two of the Hawaiian Legislature, appeal from a declaratory decree of the District Court holding that appellee Dyer, plaintiff below, had been deprived of his liberty and property without due process of law and equal protection of the law.1 The contention below was that the appellants had failed since 1900 to reapportion the Senate and the House Districts as required by Section 55 of the Hawaiian Organic Act, thereby diminishing appellee's voting power and his district's relative strength in the Hawaiian Legislature since his District has experienced a larger increase in population since the original apportionment than have other Districts. Dyer has stipulated in this court that he waives all damages for the harm claimed.

2

The District Court had orally announced its opinion that it would order a reapportionment or in the alternative an election at large when Congress amended Section 55 of the Organic Act (Public Law 895, 84th Congress, 2d Session; 48 U.S.C.A. § 562) and itself ordered reapportionment of the senatorial and representative districts. This amendment, of course, made Dyer's controversy over reapportionment moot. Nevertheless the District Court entered a declaratory decree for Dyer recognizing and adjudicating the deprivation of his rights during the period prior to the amendment of Section 55. Since the sole purpose for such a decree was to afford Dyer a ground for the damages he now does not seek we reverse it and order the District Court to dismiss the complaint without prejudice.

Notes:

1

The decree was predicated on the Civil Rights Act, 42 U.S.C.A. § 1483