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ent one upon the basis just stated, the argu- | 1173, Sup. Ct. Rep. p. 718): "In our opinion ment proceeds to insist that the 6th Amend the 7th Amendment secured unanimity in ment does not apply to the territory of finding a verdict as an essential feature of Alaska, because § 1891 of the Revised Stat-trial by jury in common-law cases and the utes only extends the Constitution to the act of Congress could not impart the power organized territories, in which, it is urged, to change the constitutional rule, and could Alaska is not embraced.

not be treated as attempting to do so.” Whilst the premise as to the existence Again, in Capital Traction Co. v. Hof, of legislation declaring the extension of the 174 U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep. Constitution to the territories with which 580, no reference whatever being made to the cases were respectively concerned is well the statute of February 21, 1871, extending founded, the conclusion drawn from that the provisions of the Constitution to the fact is not justified. Without attempting District of Columbia (16 Stat. at L. 419, to examine in detail the opinions in the chap. 62), it was declared (p. 5, L. ed. p. various cases, in our judgment it clearly | 874, Sup. Ct. Rep. p. 382): “It is beyond results from them that they substantially doubt, at the present day, that the provirested upon the proposition that where ter- sions of the Constitution of the United ritory was a part of the United States the States securing the right of trial by jury, inhabitants thereof were entitled to the whether in civil or criminal cases, are appli. guaranties of the 5th, 6th, and 7th Amend cable to the District of Columbia.” ments, and that the act or acts of Congress And in Black v. Jackson, 177 U. S. 349, purporting to extend the Constitution were 44 L. ed. 801, 20 Sup. Ct. Rep. 648, speak. considered as declaratory merely of a re-ing of a law of the territory of Oklahoma, sult which existed independently by the in- it was said (p. 363, L. ed. p. 807, Sup. Ct. herent operation of the Constitution. It Rep. p. 653): is true that, in some of the opinions, both “And it also fails to recognize the prothe application of the Constitution and the visions of the 7th Amendment securing the statutory provisions declaring such applica- right of trial by jury in 'suits at common tion were referred to, but in others no ref-law,' where the value in controversy exceeds erence to such statutes was made, and the $20. That amendment, so far as it secures cases proceeded upon a line of reasoning the right of trial by jury, applies to judicial leaving room for no other view than that proceedings in the territories of the United the conclusion of the court was rested upon States. Webster v. Reid, 11 How. 437, 460, the self-operative application of the Consti- 13 L. ed. 761, 770; American Pub. Co. v. tution. Springville v. Thomas, 166 U. S. Fisher, 166 U. S. 464, 466, 41 L. ed. 1079, 707, 41 L. ed. 1172, 17 Sup. Ct. Rep. 717; 1080, 17 Sup. Ct. Rep. 618; Springville v. Thompson v. Utah, 170 U. S. 343, 42 L. ed. Thomas, 166 U. S. 707, 41 L. ed. 1172, 17 1061, 18 Sup. Ct. Rep. 620; Capilal Trac- Sup. Ct. Rep. 717. So that a court of a

. . tion Co. v. Hof, 174 U. S. 1, 43 L. ed. 873, territory authorized, as Oklahoma was, to 19 Sup. Ct. Rep. 580; Black v. Jackson, 177 pass laws not inconsistent with the ConU. S. 349, 44 L. ed. 801, 20 Sup. Ct. Rep. stitution of the United States (26 Stat, at 648.

L. 81, 84, chap. 182, § 6,) could not proceed And this result of the cases will be made in a 'common-law' action as if it were a clear by a brief reference to some of the suit in equity, and determine by mandatory opinions. In Thompson v. Utah, consider-injunction rights for the protection or ening a law of the state of Utah, which pro- forcement of which there was a plain and vided that a jury in a criminal cause should adequate remedy at law according to the consist of only eight persons, the statute established distinctions between law and was held to be ex post facto and void in its equity." application to felonies committed before the As it conclusively results from the fore. territory became a state, “because in re going considerations that the 6th Amend. spect of such crimes the Constitution of the ment to the Constitution was applicable United States gave the accused, at the time to Alaska, and as of course, being applicaof the commission of his offense, the right ble, it was controlling upon Congress in to be tried by a jury of twelve persons, and legislating for Alaska, it follows that the made it impossible to deprive him of his provision of the act of Congress under conliberty except by the unanimous verdict of sideration, depriving persons accused of a such a jury."

misdemeanor in Alaska of a right to trial In Springville v. Thomas it was contended by a common-law jury, was repugnant to that the territorial legislature of Utah was the Constitution and void. Having disempowered by Congress, in the organic act posed of the constitutional question, we of the territory, to dispense with unanimity deem it unnecessary to review the other of the jurors in rendering a verdict in a alleged errors. civil case. The court said (p. 708, L. ed. p. The judgment must therefore be reversed,

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and the case remanded, with directions to disclaimed by the four dissenting justices, set aside the verdict and grant a new trial. who held that the Constitution applied the And it is so ordered.

moment the territory was ceded and be

came the property of the United States, and Mr. Justice Brown, concurring:

that no act of incorporation was necessary. I am disposed to concur in the conclusion it was simply the individual opinion of of the court upon the ground that, by the three members of the court. The point was treaty of cession with Russia, it was pro- not pressed upon our attention in the briefs vided that “the inhabitants of the ceded ter- or arguments of counsel in that case. It ritory

shall be admitted to the is but faintly suggested in the briefs in enjoyment all the rights, advantages, and this case. It has never since that time reimmunities of citizens of the United States; ceived the indorsement of this court, and and shall be maintained and protected in in my opinion is wholly unnecessary to the the free enjoyment of their liberty, prop disposition of this case. erty, and religion.” I am inclined to think, My own view is, and has been, that Conthough with some doubt, that those words gress in dealing with newly acquired terri. include a right to a trial by a jury, as un- tory is unfettered by the Constitution, understood among us from the adoption of the less it formally or by implication extends Constitution. I certainly should not dissent the Constitution to it; and that it may acif the case were put upon that ground. cept a cession of territory, institute a tem

The tenor of the opinion, however, is such porary government there, as it has done in that I should be doing an injustice to my- a large number of instances, without there. self if I failed to express my views upon by extending the Constitution over it. In the doctrine of incorporation. My position the general act (Rev. Stat. § 1891) Conregarding the applicability of the Consti- gress did declare that “the Constitution, and tution to newly acquired territory is con- all laws of the United States which are tained in the opinion delivered by me in not locally inapplicable, shall have the same Downes v. Biduell, 182 U. S. 244, 45 L. ed. force and effect within all the organized ter1088, 21 Sup. Ct. Rep. 770. It is simply that ritories, and in every territory hereafter orthe Constitution does not apply to territories ganized, as elsewhere within the United acquired by treaty until Congress has so States.” If the act of May 17, 1884, prodeclared, and that in the meantime, under viding a civil government for Alaska (23 its power to regulate the territories, it may Stat. at L. 24, chap. 53), be regarded as deal with them regardless of the Constitu- organizing a territory there, it would fol. tion, except so far as concerns the natural low that such territory at once fell within rights of their inhabitants to life, liberty, Rev. Stat. § 1891, and the Constitution was and property.

extended to it without further action. The A different view, however, was expressed first article declares that Alaska “shall conin a concurring opinion by Mr. Justice stitute a civil and judicial district, the govWhite, to the effect that when Congress "in- ernment of which shall be organized and adcorporated” territory into the United States ministered as hereinafter provided.” Had it resulted that in governing such territory the opinion treated the territory as organ"all the limitations of the Constitutionized under this act, I should not have diswhich are applicable to Congress in exercis- sented from this view, since § 1891 would ing this authority necessarily limit its pow- have applied to it. er on this subject. It follows, also, that Congress did undoubtedly provide a perevery provision of the Constitution which manent civil government for Alaska by the is applicable to the territories is also con- act of June 6, 1900 (31 Stat. at L. 321, trolling therein,

and the deter- chap. 786), but it evidently did not regard mination of what particular provision of the Constitution as extended to it by any the Constitution is applicable, generally previous act, since it provided in § 171 for speaking, in all cases, involves an inquiry trials of misdemeanors by a jury of six. into the situation of the territory, and its There are so many difficulties connected relation to the United States.” The ques- with the applicability of the Constitution tion was thus briefly stated: “Had Porto that it has seemed to me that the only true Rico, at the time of the passage of the act test was whether Congress intended to apin question, been incorporated into and be ply it or not in the particular case. When come an integral part of the United is a territory incorporated so as to make the States ?" If it had, the inference was that Constitution applicable in all its provisions ? the Constitution applied in all its force. That some action on the part of Congress

This, however, was not the opinion of the is necessary to extend the Constitution to court; it was certainly not the opinion of the territories was settled in Downes v. Bidthe justice who announced the conclusion well, but shall such action be direct, or may and judgment of the court; it was wholly' it be indirect by way of incorporation? May

its

Congress, in organizing or incorporating a to any existing treaty of the United States, territory, restrict the application of the shall remain in force until the Congress of Constitution to it, or must it give it all? the United States shall otherwise deterWhat is au organized as distinguished from mine.” an incorporated territory? Does not the ac- While the government provided by this ceptance of a cession of territory and the resolution was temporary in its character, appointment of a civil governor work an in- and a mere continuance of existing laws, the corporation of the territory as territory of act itself was as complete an incorporation the United States? If the acceptance of ter of the islands as it was possible for lanritory as territory of the United States be guage to make it. The resolution declared not an incorporation, what language is nec- that "said cession" of the Republic of Haessary to effect that result? Apparently, ac waii "is accepted, ratified, and confirmed, ceptance of the territory is insufficient in and that the said Hawaiian Islands and their the opinion of the court in this case, since dependencies be, and they are hereby, anthe result that Alaska is incorporated into nexed as a part of the territory of the the United States is reached, not through United States, and are subject to the sovthe treaty with Russia, or through the es- ereign dominion thereof." In view of this tablishment of a civil government there, but language I do not see how it is possible to from the act of July 20, 1868, concerning in- escape the conclusion that there was a plain ternal revenue taxation, and the act of July incorporation by Congress of these islands, 27, 1868, extending the laws of the United and an extension of sovereignty over them. States relating to the customs, commerce, Notwithstanding this, however, we held that and navigation over Alaska, and establish the conviction of one who, between the date ing a collection district there. Certain other of the Newlands resolution and the date of acts are cíted, notably the judiciary act of establishing a civil government, had been March 3, 1891, making it the duty of this tried on information and convicted by a court to assign the several territories of nonunanimous jury, was legal, though not the United States to particular circuits. in compliance with the 5th and 6th AmendBut no mention is made either of the act ments to the Constitution, upon the ground of May 17, 1884, providing a civil govern that the Constitution was not formally exment for Alaska, or the act of June 6, 1900, tended to them until the territory was ormaking further provision for a civil gov- ganized, June 14, 1900 (31 Stat. at L. 141, ernment and establishing a complete code chap. 339, § 5). This case shows the imof laws. These seem to me the vital possibility of applying the doctrine of inacts upon the status of Alaska; yet they corporation without an accurate definition are completely ignored in the opinion of of the term. Hitherto we have been conthe court, and the fact of incorporation tent to divide our territories into the oris sought to be established by what seem ganized and unorganized; but now we are to me remote inferences from immaterial asked to introduce a new classification of statutes. Indeed, I regard the whole theory "incorporated” territories, without attemptof the extension of the Constitution by the ing to define what shall be deemed an incorincorporation of territory as a new depar- poration. The word appears to me simply ture in Federal jurisprudence, and that the to introduce a new element of confusion, and true answer to the question whether the to be of no practical value. Rev. Stat. § Constitution applies to a territory is to be 1891, declaring that the Constitution shall found in the fact whether Congress has ex- have force and effect within all the organtended the Constitution to it or not.

ized territories and in every territory hereThat the mere act of incorporating ter- after organized, seems to meet the requireritory into the United States does not of its ments of every case, and to be operative own force carry the Constitution there, re- wherever Congress does not in the organigardless of the wishes of Congress, is evi- zation restrict the application of the Condent from the case of Hawaii v. Mankichi, stitution in some particular. 190 U. S. 197, 47 L. ed. 1016, 23 Sup. Ct. In Dorr v. United States, 195 U. S. 138, Rep. 787, wherein it was held that, notwith- 24 Sup. Ct. Rep. 808, 49 L. ed. 128, the standing the island had been annexed to the question was presented, as stated by Mr. United States "as a part of the territory of Justice Day, whether, "in the absence of the United States, and subject to the sov- a statute of Congress expressly conferereign dominion thereof,” yet it was possi. ring the right, trial by jury is a ble for Congress to declare that “the mu. sary incident of judicial procedure in the nicipal legislation of the Hawaiian Islands, Philippine Islands, where demand for trial not enacted for the fulfilment of the trea by that method has been made by the acties so extinguished, and not inconsistent cused and denied by the courts established with this joint resolution, nor contrary to in the islands.” In discussing the case it the Constitution of the United States, nor was said that not only has Congress hitherto refrained from incorporating the Philippine | without any formal action on the part of Islands into the United States, but in the Congress in recognition or enforcement of act of 1902, providing for temporary civil the treaty, and whether Congress wished government (32 Stat. at L. 691, chap. 1369) such a result or not, the inhabitants of that there was an express provision that Rev. territory became at once entitled to the beneStat. § 1891, should not apply to the Phil fit of all the guaranties found in the Conippine Islands. This is the section giving

This is the section giving stitution of the United States for the proforce and effect to the Constitution of the tection of life, liberty, and property. United States, not locally inapplicable

, After such ratification no person charged within the organized territories. The case with the commission of a crime against the simply holds that, as Congress did not ex- United States in that territory could be letend the right of trial by jury to the Phil-gally tried therefor, otherwise than by what ippine Islands, and had not so incorporated this court has adjudged to be the jury of them as to make the provision apply by im- the Constitution. plication, the right did not exist. The The constitutional requirement that “the cases of The Coquitlam, 163 U. S. 346, 41 trial of all crimes, except in cases of im,

. L. ed. 184, 16 Sup. Ct. Rep. 1117, and peachment, shall be by jury,” means, as this Binns v. United States, 194 U. S. 486, 48 court has adjudged, a trial by the historical, L. ed. 1087, 24 Sup. Ct. Rep. 816, are too common-law jury of twelve persons, and obviously inapplicable to require comment. applies to all crimes against the United

I do not dissent from the conclusion of States committed in any territory, however the court in this case, but I do dissent acquired, over which, for purposes of gove from the proposition that Congress may not ernment, the United States has sovereign deal with territories as it pleases, until it dominion. has seen fit to extend the provisions of the No tribunal or person can exercise author. Constitution to them, which, once done, in ity involving life or liberty, in any territory my view, is irrevocable. I regret that the of the United States, organized or unordisputed doctrine of incorporation should ganized, except in harmony with the Conhave been made the mainstay of the opinion stitution. of the court, when the case might so easily Congress cannot suspend the operation of have been disposed of upon grounds which the Constitution in any territory after it would have evoked no utterance of disap- has come under the sovereign authority of proval.

the United States, nor by any affirmative

enactment, or by mere nonaction, can ConMr. Justice Harlan, concurring:

gress prevent the Constitution from being My views in reference to what are called the supreme law for any peoples subject to the Insular Questions have been fully ex- the jurisdiction of the United States. pressed in the opinions filed by me in The power conferred upon Congress to Downes v. Bidwell, 182 U. S. 244, 375, 45 make needful rules and regulations respectL. ed. 1088, 1140, 21 Sup. Ct. Rep. 770; ing the territories of the United States does Hawaii v. Mankichi, 190 U. S. 197, 226, 47 not authorize Congress to make any rule

, L. ed. 1016, 1026, 23 Sup. Ct. Rep. 787; or regulation inconsistent with the ConstiDorr v. United States, 195 U. S. 138, 154, tution or violative of any right secured by 24 Sup. Ot. Rep. 808, 49 L. ed. 128. I that instrument. adhere to what has been said in those The proposition that a people subject to opinions, and do not care to restate here the full authority of the United States for the grounds upon which I proceeded in for- purposes of government may, under any mer cases.

circumstances, or for any period of time, The particular question arising in the long or short, be governed as Congress present case is whether that section of the pleases to ordain, without regard to the act of Congress of June 6th, 1900, chap. 786 Constitution, is, in my judgment, inconsist

, [31 Stat. at L. 321), relating to Alaska, ent with the whole theory of our insti. which provides "that hereafter in trials for tutions. misdemeanors six persons shall constitute lf the Constitution does not become the a legal jury,” is consistent with the Consti- supreme law in a territory acquired by tution of the United States. I content my treaty, and whose inhabitants are under the self in this case with stating only the gen- dominion of the United States, until Con- . eral reasons for the conclusion which I have gress, in some distinct form, shall have exreached on that question.

pressed its will to that effect, it would necImmediately upon the ratification in 1867 essarily follow that, by positive enactment, of the treaty by which Alaska was acquired or simply by nonaction, Congress, under the from Russia, that territory, as I think, came theory of "incorporation," and although a under the complete sovereign jurisdiction mere creature of the Constitution, could and authority of the United States, and, I forever withhold from the inhabitants of

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V.

such territory the benefit of the guaranties | vated railroad structure in front of his of life, liberty, and property as set forth in premises, unless compensated for the imthe Constitution. I cannot assent to any pairment of his easements of light, air, and such doctrine. I cannot agree that the access, which judgment was entered pursupremacy of the Constitution depends up- suant to the mandate of the Court of Apon the will of Congress.

peals of that State, which reversed a judg. As these are my views upon the under- ment of the Appellate Division of the Sulying questions presented by the record, Ipreme Court, First Department, affirming cannot concur in all the reasoning in the a decree in favor of plaintiff, entered at a opinion of the court. But I entirely con- special term held in and for the County of cur in the judgment holding the act of New York. Reversed and remanded for furCongress in question to be void. I do so, ther proceedings. not upon the ground that Alaska had been | See same case below in Appellate Division previously "incorporated” into the United of Supreme Court, 60 App. Div. 621, 69 States by the legislation of Congress, but N. Y. Supp. 910, and Court of Appeals, 173 upon the ground that the right of the ac- N. Y. 549, 66 N. E. 558. cused to a trial by the jury of the Constitution became complete immediately upon Statement by Mr. Justice McKenna: the acquisition of Alaska by treaty, and Plaintiff sues to enjoin the use of a cerbefore any legislation upon the subject by tain elevated railroad structure on Park Congress,-indeed, without any power in avenue, in the city of New York, 'in front Congress to add to or impair or destroy of his premises, unless upon payment of the that right.

fee value of certain easements of light, air, and access, and other rights appurtenant to

his premises. He also prays damages for (197 U. S. 544) HENRY MUHLKER, Piff. in Err.,

injury sustained from the year 1890 to time of trial.

From the evidence in the case the supreme NEW YORK & HARLEM RAILROAD court found that the plaintiff had been,

COMPANY and New York Central & since 1888, the owner of a lot of land on the Hudson River Railroad Company.

northwesterly corner of Park avenue and

115th street, on which he, ir 1891, erected Contracts impairment of obligation

a five-story brick building, and that there effect of judicial decisions.

were appurtenant to said lot and building An owner of real property abutting on a street in and over said Park avenue, in front of

“certain easements of light, air, and access in New York city, who derived his title from the grantor to the city, in trust for a pub- said premises." The defendant, The New lic highway, of the strip of land constituting York & Harlem Railroad Company, is and the street, and acquired such title when the was during all the times mentioned herein state courts had decided that one so situated the owner of a railroad and railroad struchad a contract right to easements of light, tures in Park avenue, in front of such premair, and access, which could not be taken from him without compensation by the con ises, and the New York Central & Hudson struction of an elevated railroad in the ad- River Railroad Company is the lessee of joining street, is protected against impair- said railroad structures under a lease dated ment of his easements of light and air by April 1, 1873, for a term of four hundred the substitution by a railroad company, at and one years; that said railroad, prior to the subsequent command of the state, as expressed in N. Y. Laws 1892, chap. 339, of 1872, was operated on two tracks laid upon an elevated structure in lieu of its surface the surface of said avenue and along the or partly depressed roadbed, which occu- center thereof, in front of said premises. pied the street at the time of his purchase,

In pursuance of chapter 72 of the Laws and cut off his access to the street. [Per Justices McKenna, Harlan, Brewer, and Day of 1872 certain changes were made in the

, . Mr. Justice Brown concurs in the result.]

railroad in front of said premises, between

the years 1872 and 1874, whereby the num[No. 99.]

ber of tracks was increased from two to

four, and were laid along the center of the Argued December 12, 13, 1904. Ordered for avenue, and at the south line of said prem

reargument January 23, 1905. Reargued ises were at the surface, and at the north February 24, 27, 1905. Decided April 10, line of said premises were laid in a trench 1905.

about 512 feet below the surface. In front

of said premises the railroad was bounded N ERROR to the Supreme Court of the on both sides by masonry walls about 3

State of New York to review a judgment feet high above the surface, and cut off dismissing the complaint in an action by an access across said avenue immediately in abutting owner to enjoin the use of an ele- ' front of said premises.

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