kiyoshi hirabayashi argued decided june frank walters seattle harold evans philadelphia hirabayashi charles fahy sol washington chief justice stone delivered opinion appellant american citizen japanese ancestry convicted district violating act congress march stat makes misdemeanor knowingly disregard restrictions made applicable military commander persons military area prescribed authorized executive order president questions decision whether particular restriction violated namely persons japanese ancestry residing area within place residence daily hours adopted military commander exercise unconstitutional delegation congress legislative power whether restriction unconstitutionally discriminated citizens japanese ancestry ancestries violation fifth amendment indictment two counts second charges appellant person japanese ancestr specified date contrary restriction promulgated military commander western defense command fourth army failed remain place dence designated military area hours first count charges appellant may contrary civilian exclusion order issued military commander failed report civil control station within designated area appearing appellant required presence preliminary step exclusion area persons japanese ancestry demurrer plea abatement overruled appellant asserted indictment dismissed american citizen never subject never borne allegiance empire japan also act march unconstitutional delegation congressional power trial jury appeared appellant born seattle japanese parents come japan never afterward returned japan educated washington public schools time arrest senior university washington never japan association japanese residing evidence showed appellant failed report civil control station may may directed register evacuation military area admitted failure stated times belief waiving rights american citizen evidence also showed like reason away place residence may jury returned verdict guilty counts appellant sentenced imprisonment term three months sentences run concurrently appeal appeals ninth circuit certified us questions law upon desired structions decision case see judicial code amended acting authority conferred upon us section ordered entire record certified might proceed decision matter controversy manner brought appeal since sentences three months imposed district two counts ordered run concurrently unnecessary consider questions raised respect first count find conviction second count violation curfew order must sustained brooks gorin curfew order appellant violated sanction prescribed act congress deemed attach purported issued pursuant executive order president passing upon authority military commander make execute order becomes necessary consider detail official action preceded accompanied order derives purported authority december one day bombing pearl harbor japanese air force congress declared war japan stat preceding section note february president promulgated executive order federal register order recited successful prosecution war requires every possible protection espionage sabotage material premises utilities defined section act april stat amended act november stat act august stat virtue authority vested president commander chief army navy president purported direct secretary war military commanders may time time designate whenever designated commander deems action necessary desirable prescribe military areas places extent appropriate military commander may determine persons may excluded respect right person enter remain leave shall subject whatever restrictions secretary war appropriate military commander may impose discretion february secretary war designated general dewitt military commander western defense command comprising pacific coast others carry duties prescribed executive order march general dewitt promulgated public proclamation federal register proclamation recited entire pacific coast geographical location particularly subject attack attempted invasion armed forces nations war connection therewith subject espionage acts sabotage thereby requiring adoption military measures necessary establish safeguards enemy operations stated present situation requires matter military necessity establishment territory embraced western defense command military areas zones thereof specified designated military areas certain areas within western defense command declared persons classes persons situation may require subsequent proclamation excluded certain areas might permitted enter remain certain others regulations restrictions later prescribed among military areas designated public proclamation military area embraced besides southern part arizona coastal region three pacific coast including city seattle washington appellant resided military area designated proclamation included parts coastal arizona placed within military area public proclamation march issued general dewitt made like recitals designated military areas zones contained like provisions concerning exclusion subsequent proclamation certain persons classes persons areas future promulgation regulations restrictions applicable persons remaining within federal register executive order president march established war relocation authority office emergency management executive office president authorized director war relocation authority formulate effectuate program removal relocation maintenance supervision persons designated executive order already referred conferred director authority prescribe regulations necessary desirable promote effective execution program federal register congress act march provided whoever shall enter remain leave commit act military area military zone prescribed authority executive order president secretary war military commander designated secretary war contrary restrictions applicable area zone contrary order secretary war military commander shall appears knew known existence extent restrictions order act violation thereof guilty misdemeanor upon conviction shall liable fine imprisonment three days later march general dewitt issued public proclamation federal register referring previous designation military areas public proclamations recited present situation within military areas zones requires matter military necessity establishment certain regulations pertaining enemy aliens persons japanese ancestry within said military areas zones accordingly declared established march alien japanese alien germans alien italians persons japanese ancestry residing within geographical limits military area shall within place residence hours period hereinafter referred hours curfew also imposed certain restrictions persons japanese ancestry provided person violating regulations subject criminal penalties provided act congress march beginning march military commander issued series civilian exclusion orders pursuant provisions public proclamation order related specified area within territory command order applicable appellant civilian exclusion order may federal register directed noon may persons japanese ancestry alien excluded specified portion military area seattle including appellant place residence required member family individual living alone affected order report may may designated civil control station seattle meanwhile military commander issued public proclamation march recited necessity providing orderly evacuation resettlement japanese within area prohibited alien japanese persons japanese ancestry leaving military area future orders permit federal register appellant deny knowingly failed obey curfew order charged second count indictment order authorized terms executive order challenged act congress purports punish criminal penalties disobedience order contentions congress unconstitutionally delegated legislative power military commander authorizing impose challenged regulation even regulation respects lawfully authorized fifth amendment prohibits discrimination made citizens japanese descent ancestry evident legislative history act march contemplated authorized curfew order us bill became act march introduced senate march house march request secretary war letters chairman senate committee military affairs speaker house stated explicitly purpose provide means enforcement orders issued executive order appears committee reports bill set full executive order secretary letter cong sess sess com ittee reports expressly mentions curfew orders one types restrictions deemed desirable enforce criminal sanctions bill consideration general dewitt published proclamation march establishing military areas nos proclamation congress see also letter secretary chairman house military affairs committee march informed congress dewitt strongly opinion bill enacted broad enough enable secretary war appropriate military commander enforce curfews restrictions within military areas zones general dewitt prepared enforce certain restrictions purpose protecting certain vital national defense interests desire proceed enforcement machinery set see also letter acting secretary war chairman senate military affairs committee march chairman senate military affairs committee explained floor senate purpose proposed legislation provide means enforcement curfew orders military orders made pursuant executive order read general dewitt public proclamation statements newspaper reports first japanese aliens japanese begin also stated senate suspected widespread activity among japanese found system dual citizenship japan deemed applicable born japanese propaganda disseminated japanese consuls buddhist priests leaders among children japanese stated explanation contemplated evacuation pacific coast area persons japanese ancestry citizens well aliens see also pp congress also preliminary report house committee investigating national defense migration march approved provisions executive order recommended evacuation military areas established order persons japanese ancestry including citizens sess proposed legislation provided criminal sanctions violation orders terms broad enough include curfew order us legislative history demonstrates congress advised curfew orders among intended advised also regulation citizen alien japanese alike contemplated conclusion inescapable congress act march ratified confirmed executive order prize cases amy warwick black hamilton dillin wall heinszen tiaco forbes moller swayne hoyt mason tax far lawfully congress authorized implemented curfew orders commanding officer promulgate pursuant executive order president question one congressional power delegate president promulgation executive order whether acting cooperation congress executive constitutional authority impo restriction complained must consider also whether acting together congress executive leave designated military commander appraise relevant conditions basis appraisal say whether circumstances time place appropriate promulgation curfew order whether order appropriate means carrying executive order espionage sabotage national defense materials premises utilities reasons presently stated conclude within constitutional power congress executive arm government prescribe curfew order period consideration promulgation military commander involved unlawful delegation legislative power executive order promulgated time war declared purpose prosecuting war protecting national defense resources sabotage espionage act march ratifying confirming executive order exercise power wage war conferred congress president commander chief armed forces articles ii constitution see ex parte quirin occasion consider whether president acting alone lawfully made curfew order question authorized others make president action support act congress immediately concerned question whether within constitutional power national government joint action congress executive impose restriction emergency war measure exercise power involves question martial law trial military tribunal cf ex parte milligan wall ex parte quirin supra appellant tried convicted civil courts subjected penalties prescribed congress acts committed war power national government power wage war successfully see charles evans hughes war powers constitution extends every matter activity related war substantially affect conduct progress power restricted winning victories field repulse enemy forces embraces every phase national defense including protection war materials members armed forces injury dangers attend rise prosecution progress war prize cases supra miller wall stewart kahn wall selective draft law cases arver mckinley macintosh since constitution commits executive congress exercise war power vicissitudes conditions warfare necessarily given wide scope exercise judgment discretion determining nature extent threatened injury danger selection means resisting ex parte quirin supra cf prize cases supra black martin mott wheat conditions call exercise judgment discretion choice means branches government constitution placed responsibility warmaking sit review wisdom action substitute judgment actions taken must appraised light conditions president congress confronted early months many since disclosed peculiarly within knowledge military authorities december japanese air forces attacked naval base pearl harbor without warning hour japanese diplomatic representatives conducting negotiations state department ostensibly peaceful settlement differences two countries simultaneously nearly japanese attacked malaysia hong kong philippines wake midway islands following day army invaded thailand shortly afterwards sank two british battleships december guam taken december captured wake island occupied hong kong january manila fell february singapore britain great naval base east taken february battle java sea resulted disastrous naval defeat nations march japanese forces established control netherlands east indies rangoon burma occupied bataan corregidor attack although results attack pearl harbor fully disclosed much later known damage extensive japanese successes gained naval superiority forces pacific might enable seize pearl harbor largest naval base last stronghold defense lying japan west coast reasonably prudent men charged responsibility national defense ample ground concluding must face danger invasion take measures making choice measures consider internal situation doubted challenged orders defense measures avowed purpose safeguarding military area question time threatened air raids invasion japanese forces danger sabotage espionage curfew made applicable citizens residing area japanese ancestry inquiry must whether light facts circumstances substantial basis conclusion congress military commander curfew applied protective measure necessary meet threat sabotage espionage substantially affect war effort might reasonably expected aid threatened enemy invasion alternative appellant insists must accepted military authorities impose curfew citizens within military area none case threatened danger requiring prompt action choice inflicting obviously needless hardship many sitting passive unresisting presence threat think constitutional government time war powerless compel hard choice charged responsibility national defense reasonable ground believing threat real orders promulgated vast concentration within military areas installations facilities production military equipment especially ships airplanes important army navy bases located california washington approximately total value major aircraft contracts let government procurement officers performed state california california ranked second washington fifth union respect value shipbuilding contracts performed critical days march danger war production sabotage espionage area seems obvious german invasion western european countries given ample warning world menace column espionage persons sympathy japanese government found particularly effective surprise attack pearl harbor time threatened japanese attack upon country nature inhabitants attachments japanese enemy consequently matter grave concern persons japanese descent citizens citizens approximately resided california oregon washington time adoption military regulations approximately citizens born great majority persons reside within pacific coast concentrated near three large cities seattle portland los angeles military area support view social economic political conditions prevailed since close last century japanese began come country substantial numbers intensified solidarity large measure prevented assimilation integral part white population addition large numbers children japanese entage sent japanese language schools outside regular hours public schools locality schools generally believed sources japanese nationalistic propaganda cultivating allegiance japan considerable numbers estimated approximately children japanese parentage sent japan part education congress executive including military commander attributed special significance bearing loyalties persons japane descent maintenance japan system dual citizenship children born japanese alien parents especially children born december many circumstances deemed japanese law citizens japan official census japan regards thus retained japanese citizenship available ground belief number large large number resident alien japanese approximately japanese inhabitants country mature years occupy positions influence japanese communities association influential japanese residents japanese consulates deemed ready means dissemination propaganda maintenance influence japanese government japanese population country result conditions affecting life japanese aliens citizens pacific coast area relatively little social intercourse white population restrictions practical legal affecting privileges opportunities afforded persons japanese extraction residing sources irritation may well tended increase isolation many instances attachments japan institutions viewing data aspects congress executive reasonably concluded conditions encouraged continued attachment members group japan japanese institutions many considerations charged responsibility national defense take account determining nature extent danger espionage sabotage event invasion air raid attack extent danger definitely known event late meet whatever views may entertain regarding loyalty country citizens japanese ancestry reject unfounded judgment military authorities congress disloyal members population whose number strength precisely quickly ascertained say making branches government ground believing critical hour persons readily isolated separately dealt constituted menace national defense safety demanded prompt adequate measures taken guard appellant deny given danger curfew appropriate measure sabotage obvious protection perpetration sabotage readily committed hours darkness appropriate exercise war power validity impaired restricted citizen liberty like every military control population dangerous zone war ime necessarily involves infringement individual liberty police establishment fire lines fire confinement people houses air raid thought infringement constitutional right like validity restraints curfew order depends conditions obtain time curfew imposed support order imposing appellant insists exercise power inappropriate unconstitutional discriminates citizens japanese ancestry violation fifth amendment fifth amendment contains equal protection clause restrains discriminatory legislation congress amounts denial due process detroit bank cases cited congress may hit particular danger seen without providing others evident urgent keokee consol coke taylor distinctions citizens solely ancestry nature odious free people whose institutions founded upon doctrine equality reason legislative classification discrimination based race alone often held denial equal protection yick wo hopkins yu cong eng trinidad hill texas may assume considerations controlling fact danger espionage sabotage time war threatened invasion calls upon military authorities scrutinize every relevant fact bearing loyalty populations danger areas racial discriminations circumstances irrelevant therefore prohibited means follows dealing perils war congress executive wholly precluded taking account facts circumstances relevant measures national defense successful prosecution war may fact place citizens one ancestry different category others must never forget constitution expounding constitution intended endure ages come consequently adapted various crises human affairs mcculloch maryland wheat adoption government crisis war threatened invasion measures public safety based upon recognition facts circumstances indicate group one national extraction may menace safety others wholly beyond limits constitution condemned merely circumstances racial distinctions irrelevant cf state ohio ex rel clarke deckebach cases cited aim congress executive protection sabotage war materials utilities areas thought danger japanese invasion air attack stated detail facts circumstances respect american citizens japanese ancestry residing pacific coast support judgment warwaging branches government restrictive measure urgent say facts circumstances considered particular war setting afford ground differentiating citizens japanese ancestry groups fact alone attack shores threatened japan rather another enemy power set citizens apart others particular associations japan investigation go beyond inquiry whether light relevant circumstances preceding attending promulgation challenged orders statute afforded reasonable basis action taken imposing curfew close eyes fact demonstrated experience time war residents ethnic affiliations invading enemy may greater source danger different ancestry deny congress military authorities acting authorization constitutional power appraise danger light facts public notoriety need attempt define ultimate boundaries war power decide issue defined decide curfew order applied time applied within boundaries war power case enough circumstances within knowledge charged responsibility maintaining national defense afforded rational basis decision made whether made irrelevant said also disposes contention curfew order involved unlawful delegation congress legislative power mandate constitution art legislative power granted vested congress never thought even administration civil affairs preclude congress resorting aid executive administrative officers determining findings whether facts call application previously adopted legislative standards definitions congressional policy purpose executive order standard president approved orders authorized promulgated military disclosed preamble executive protection war resources espionage sabotage public proclamations general dewitt contain findings military areas created measures prescribed required establish safeguards espionage sabotage executive order proclamations congress act march consideration extent executive order authorized orders promulgated military commander accomplish declared purpose order extent findings proclamations establish purpose approved congress true act terms establish particular standard orders military commander conform require findings made prerequisite order executive order proclamations statute read isolation parts single program must judged act march adoption congress executive order proclamations proclamations followed standard authorized executive necessity protecting military resources designated areas espionage sabotage act congress gave approval standard need consider validity action taken military commander without conforming standard approved congress validity orders made without support findings showing conform findings danger espionage sabotage necessity curfew order protect duly made general dewitt public proclamation established curfew merely prescribed regulations type manner public proclamations announced prescribed future date thus founded findings pro lamations military commander appraisal facts light authorized standard inferences drew facts involved exercise informed judgment seen facts inferences rationally drawn support judgment military commander danger espionage sabotage military resources imminent curfew order appropriate measure meet present case standard set guidance military commander action taken reasons fact recorded military orders congress courts public assured orders judgment commander conform standards approved president congress failure performance legislative function opp cotton mills administrator cases cited essentials function determination congress legislative policy approval rule conduct carry policy execution necessities attend conduct military operations time war instance many others preclude congress holding committee meetings determine whether danger enacts legislation combat danger constitution continuously operating charter government demand impossible impractical essentials legislative function preserved congress authorizes statutory command become operative upon ascertainment basic conclusion fact designated representative government cf aurora cranch chemical foundation present statute authorized curfew orders made pursuant executive order protection war resources espionage sabotage satisfies requirements executive order basic facts determined military commander light knowledge available whether danger existed whether curfew order appropriate means minimizing danger since findings effect said without adequate support legislative function performed sanction statute attached violations curfew order unnecessary consider whether extent findings support orders differing curfew order conviction second count without constitutional infirmity hence occasion review conviction first count since already stated sentences two counts run concurrently conviction second sufficient sustain sentence reason also unnecessary consider government argument compliance order report civilian control station necessarily entail confinement relocation center affirmed justice douglas concurring concur result agree substantially opinion wish add words indicate narrow ground decision disastrous bombing pearl harbor military grave problem hands threat japanese invasion west coast fanciful real presence many thousands aliens citizens japanese ancestry near key points along coast line aroused special concern charged defense country believed among aliens also among citizens japanese ancestry give aid comfort japanese invader act fifth column invasion militar right belief among citizens japanese ancestry actual incipient fifth column indeed faced imminent threat dire emergency must credit military much good faith belief public official acting pursuant duties possibly know facts lay behind decision may intangible imponderable factors influence personal business decisions daily life point sit judgment military requirements hour orders present act relation espionage sabotage task end much argument assumes matter policy might wiser military dealt people individual basis process investigation hearings separated loyal wisdom expediency decision made us review warranted national survival stake insisting orders applied anyone without evidence disloyalty orders applied petitioner tested substantial evidence rule peacetime procedures necessarily fit wartime needs said citizens japanese ancestry generally disloyal treatment group basis might justified difference power ber finally shown disloyal suspect reduced small per cent sorting process might indeed whether disloyal suspect constituted nine per cent pinch order loyal citizens great case peril great time short temporary treatment group basis may practicable expedient whatever ultimate percentage detained cause military required wait espionage sabotage becomes effective moves true might say ample time handle problem individual rather group basis military decisions must made without benefit hindsight orders must judged date decision issue made say military cases take time weed loyal others assume nation afford take time opinion makes clear speed dispatch may essence certainly say charged defense nation procrastinated investigations hearings completed time delay might indeed seemed wholly incompatible military responsibilities since override military judgment lay behind orders seems necessary concede army power deal temporarily people group basis petitioner therefore justified disobeying orders think important emphasize dealing problem loyalty assimilation loyalty matter mind heart race indeed history america moreover guilt sonal constitutional system detention reasonable cause one thing detention account ancestry another case petitioner tendered plea abatement question loyalty think plea properly stricken military measures defense might paralyzed necessary try issue preliminarily denial opportunity case necessarily mean petitioner hearing issue appropriate proceeding obedience military orders one thing whether individual member group must afforded stage opportunity show loyal reclassified wholly different question instances law one must obey order attack erroneous classification placed thus commonly held one conscientious objector privilege defy selective service act refuse fail inducted must submit law line authority holds induction may obtain habeas corpus hearing legality classification draft board whether present situation remedy available one large important issues reserved present decision suggested administrative procedure established relieve unwarranted applications orders whether event administrative remedy one available first exhausted also reserved scope relief might liberties applicant restored outside areas likewise distinct issue plain machinery available whereby individual demonstrate loyalty citizen order reclassified questions serious character presented however takes position need go deny individual right defy law sufficient say test way validity orders applied justice murphy concurring doubted action taken military commander pursuance authority conferred upon taken complete good faith firm conviction required considerations public safety military security neither doubted congress executive working together may generally employ measures necessary appropriate provide common defense wage war force necessary make effective macintosh includes authority exercise measures control persons property hich cases permissible normal times follow however broad guaranties bill rights provisions constitution protecting essential liberties suspended mere existence state war frequently stated recognized war power like great substantive powers government subject limitations constitution see ex parte milligan wall hamilton kentucky distilleries home building loan association blaisdell give great deference judgment congress military authorities necessary effective prosecution war never forget constitutional boundaries duty uphold supposed instance public elections suspended prerogatives courts set aside persons charged offenses law war see ex parte quirin ed deprived due process law benefits trial jury absence valid declaration martial law cf ex parte milligan supra distinctions based color ancestry utterly inconsistent traditions ideals variance principles waging war close eyes fact centuries old world torn racial religious conflicts suffered worst kind anguish inequality treatment different groups one law one different law another nothing written firmly law compact plymouth voyagers equal laws say group assimilated admit great american experiment failed way life failed confronted normal attachment certain groups lands forefathers nation embrace many groups among oldest settlements midst isolated religious cultural reasons today first time far aware sustained substantial restriction personal liberty citizens based upon accident race ancestry curfew order challenged less american citizens placed special ban deprived liberty particular racial inheritance sense bears melancholy resemblance treatment accorded members jewish race germany parts europe result creation country two classes citizens purposes critical perilous sanction discrimination groups citizens basis ancestry opinion goes brink constitutional power except conditions great emergency regulation kind applicable solely citizens particular racial extraction regarded accord requirement due process law contained fifth amendment consistently held attempts apply regulatory action particular groups solely basis racial distinction classification accordance due process law prescribed fifth fourteenth amendments cf yick wo hopkins yu con eng trinidad see also boyd frankfort opinion justices mass true fifth amendment unlike fourteenth contains guarantee equal protection laws cf currin wallace also true even guaranty equal protection laws allows measure reasonable classification means follows however may discrimination injurious character application laws amount denial due process law term used fifth amendment think point dangerously approached one law majority citizens another particular racial heritage view however critical military situation prevailed pacific coast area spring urgent necessity taking prompt effective action secure defense installations military operations risk sabotage espionage military authorities required conform standards regulatory action appropriate normal times damage wrought japanese pearl harbor availability new weapons new techniques greater capacity speed deception offensive operations immediate possibility attempt invasion somewhere along pacific coast reckoned however desirable procedure might military authorities reasonably concluded time determinations loyalty dependability individual members large widely scattered group persons japanese extraction west coast made without delay might tragic consequences modern war always wait observance procedural requirements considered essential appropriate normal conditions accordingly think military arm confronted peril imminent enemy attack acting authority conferred congress made allowable judgment time curfew restriction imposed whether restriction valid today another matter voting affirmance judgment wish understood intimating military authorities time war subject restraints whatsoever free impose restrictions may choose rights liberties individual citizens groups citizens places may designated areas sits inescapable duty seeing mandates constitution obeyed duty exists time war well time peace performance must forget indeed invasions upon essential liberties accompanied pleas urgent necessity advanced good faith responsible men cf justice brandeis concurring whitney cal fornia mean intimate citizens particular racial group whose freedom may curtailed within area threatened attack generally prevented leaving area going large areas danger attack special precautions needed status citizens though subject requirements national security military necessity times accorded fullest consideration respect danger past restrictions imposed promptly removed freedom action fully restored justice rutledge concurring concur opinion except suggestion intended make assertion courts power review action military officer may discretion find necessary take respect civilian citizens military areas zones found emergency created conditions requiring justifying creation area zone institution degree military control short suspending habeas corpus given generating conditions exercise military authority recognizing wide latitude particular applications ordinarily creates think necessary case decide action person position general de witt may take may regard necessary region country safety call judicial power play officer course must wide discretion room operation follow may bounds beyond go oversteps courts may power protect civilian citizen case question need faced merely add reservation without indication opinion concerning footnotes state distribution war supply facility december issued office production management bureau research statistics january february issued war production board statistics division april see upon pearl harbor japanese armed forces report commission appointed president dated january pp sixteenth census population second series characteristics population commerce california pp oregon pp washington pp see also pp federal legislation denied japanese citizenship naturalization see ozawa immigration act excluded admission stat state legislation denied alien japanese privilege owning land california general laws deering act oregon comp laws ann washington remington also sought prohibit intermarriage persons japanese race caucasians montana persons japanese descent often unable secure professional skilled employment except association others descent sufficient employment opportunities character available mears resident orientals american pacific coast pp pp hearings select committee investigating national defense migration house representatives pp nationality law japan article article regulations ordinance november printed flournoy hudson nationality laws pp see also foreign relations vol pp statistics released consul general japan san francisco asserted approximately born persons japanese parentage western part held japanese citizenship mears resident orientals american pacific coast pp census conducted auspices japanese government asserted approximately persons japanese parentage california held dual citizenship strong japanese problem judge fee stated yasui companion case present one areas zones outlined proclamations became theatre operations subjected localities attack threatened period full scale invasion danger time prosecution instituted imminent immediate difficulty controlling members alien race many although citizens disloyal opportunities sabotage espionage invasion imminent presented problem requiring solution ability devotion highest order see powell application greenberg baird micheli paullin embrey rogers ex parte stewart smith ex parte robert grieme fletcher drumheller berks county local board cases arising selective draft act appendix et seq see kinkead ex parte mcdonald ex parte cohen arbitman woodside ex parte thierit see schenck debs bethlehem steel northern pac ry north dakota dakota cent tel south dakota highland russell car plow selective draft law cases arver instance persons accused race systematically excluded jury federal conviction undoubtedly considered violation requirement due process law even though ground commonly stated setting aside convictions obtained state courts denial equal protection laws cf glasser smith texas