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Argued February 27, 28, 1905. Decided governor of the state of Massachusetts, or April 10, 1905.

order," for the sum of $1,611,740.85, and

addressed, "P. O. address, c. 0. John B. CotETITION for writs of prohibition, man. ton, Agent and Att’y, Washington, D. C.”

damus, and certiorari to restrain the Mr. Cotton notified the state attorney justices of the Supreme Court of the Dis- general of the delivery of the warrant to trict of Columbia from taking further prohim, and that he was entitled to a lien upon ceedings or entertaining jurisdiction in an the warrant for the amount of his fees unequity cause pending in that court. Rule der his contract; and the governor was indischarged; petition denied.

formed to the same effect. Mr. Cotton also

notified the Secretary of the Treasury that Statement by Mr. Chief Justice Fuller: he claimed a lien upon the warrant for com

By an act of Congress of the United pensation in accordance with his contract. States approved July 27, 1861 (12 Stat. at Subsequently the governor, Hon. John L. L. 276, chap. 21), it was provided:

Bates, addressed a communication to the “That the Secretary of the Treasury be, Secretary of the Treasury, in which he deand he is hereby, directed, out of any money manded that the warrant be canceled, and in the Treasury not otherwise appropriated, that a duplicate thereof be forwarded to to pay to the governor of any state, or to him as governor of the commonwealth. The his duly authorized agents, the costs, charg- Secretary declined to comply with the dees, and expenses properly incurred by such mand. Later Mr. Cotton filed a bill in the state for enrolling, subsisting, clothing, sup-supreme court of the District of Columbia plying, arming, equipping, paying, and against “Leslie M. Shaw, Secretary of the transporting its troops employed in aiding Treasury, and John L. Bates, governor of to suppress the present insurrection against the commonwealth of Massachusetts,” in the United States, to be settled upon proper | which he asserted his right to an attorney's vouchers, to be filed and passed upon by the lien upon the papers of his client, the comproper accounting officers of the Treasury." monwealth of Massachusetts, including the

On March 20, 1888, the legislature of warrant in question, and prayed, among Massachusetts passed the following resolu- other things, that said Leslie M. Shaw tion:

might be restrained and enjoined from can“Resolved, That the governor and council celing the warrant which had been delivered are hereby authorized to employ the agent to him, and from drawing or issuing a duof the commonwealth for the prosecution of plicate thereof to said Bates, and “that the war claims against the United States, to defendant John L. Bates may be restrained prosecute also the claim of the common and enjoined from asking, demanding, or rewealth for a refund of the direct tax paid ceiving from the defendant Leslie M. Shaw, under act of Congress approved August 5th, or any of his assistants, subordinates, or in the year 1861, and of the interest paid clerks, a second or duplicate warrant as upon war loans during the period from 1861 aforesaid." to 1865, also to fix his compensation, which The state of

of Massachusetts was not shall be paid out of any amount received named as a party to this suit, and no relief therefrom."

was prayed against the state. On July 12, 1899, the executive council of Upon the filing of this bill one of the justhe commonwealth passed a resolution au- tices of the supreme court of the District of thorizing the attorney general to employ Columbia entered a rule on the Secretary of John B. Cotton to prosecute said claim. the Treasury, requiring him to show cause Mr. Cotton was a citizen of the District of why the relief prayed against him should Columbia.

not be granted, which was duly served, but Thereupon a form of contract was pre- has not yet come on for hearing. No procpared and executed by the then governor of ess was served upon defendant Bates, who Massachusetts, in behalf and under the seal has since ceased to be governor, and he has of the commonwealth, and by Cotton; and never appeared in the suit, nor has the coma duplicate original thereof was deposited monwealth of Massachusetts intervened with the Secretary of the Treasury of the therein in any way. United States.

The commonwealth of Massachusetts then The prosecution of the claim was at once filed a petition in this court, on leave, for entered upon, and after five years was final. writs of prohibition, mandamus, and certily adjudicated, audited, and passed. orari, to restrain the justices of the supreme

On or about May 2, 1904, the Treasury court of the District of Columbia from takDepartment issued and delivered to Cotton, ing further proceedings or entertaining juas the duly authorized agent of the com- risdiction in the equity suit. monwealth of Massachusetts, war settle- In response to a rule entered on that petiment warrant No. 11,343, payable "to the 'tion, the chief justice and associate justices

25 S. C.-33.

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(197 U. S. 516) of the supreme court of the District of Co- FRED RASSMUSSEN, Piff. in Error lumbia showed cause, and submitted, for

V. reasons set forth, that, as the case stood,

UNITED STATES. the court ought not to be prevented from exercising jurisdiction.

Jury trial in Alaska-right to common-law

jury of twelve. Messrs. Frederick H. Nash and Her- Alaska was so incorporated into the United bert Parker for petitioner.

States by the treaty under which it was acMessrs. J. Spalding Flannery, Fred- quired, and by such subsequent congression. eric D. McKenney, William Hitz, and

al legislation as the act of July 20, 1868,

chap. 186, § 107 (15 Stat. at L. 167, U. S. William Frye White for respondents.

Comp. Stat. 1901, p. 2277), concerning in.

ternal revenue taxation, and the act of July Mr. Chief Justice Fuller delivered the

27, 1868, chap. 273' (15 Stat. at L. 240),

extending the laws of the United States reopinion of the court:

lating to customs, commerce, and navigation This court has no original jurisdiction over Alaska and establishing a collection disover this controversy, in any view, because trict therein, as to render repugnant to U. S. it is not a controversy between a state and

Const. 6th Amend. the provision of the act

of June 6, 1900, § 171 (31 Stat. at L. 358, a citizen of another state. Hepburn v. Ell

chap. 786), that in trials for misdemeanors zey, 2 Cranch, 445, 2 L. ed. 332; Hooe v.

in Alaska six jurors shall constitute & legal Jamieson, 166 U. S. 395, 41 L. ed. 1049, 17 jury. Sup. Ct. Rep. 596. And it has not appellate jurisdiction, because, since the passage

[No. 51.] of the act of February 9, 1893 (27 Stat. at Argued and submitted November 4, 1904. L. 434, chap. 74), establishing the court of

Decided April 10, 1905. appeals for the District of Columbia, this court, generally speaking, and not including cases arising under the bankruptcy law INERROR to the District Court of the

United States for the District of Alaska (Audubon v. Shufeldt, 181 U. S. 575, 45 to review a conviction of a misdemeanor L. ed. 1009, 21 Sup. Ct. Rep. 735), cannot by a jury of six persons. Reversed and rereview the judgments and decrees of the su- manded, with directions to set the verdict preme court of the District, directly by ap- aside and grant a new trial. peal or writ of error.

The facts are stated in the opinion. By $ 716 of the Revised Statutes, U. S. Messrs. Robert W. Jennings and W. Comp. Stat. 1901, p. 580, this court and the E. Crews for plaintiff in error. circuit and the district courts “have power Assistant Attorney General Robb for deto issue all writs not specially provided for fendant in error. by statute, which may be necessary for the exercise of their respective jurisdictions, and Mr. Justice White delivered the opinion agreeable to the usages and principles of of the court:

The plaintiff in error was indicted for By § 688, U. S. Comp. Stat. 1901, p. 565, violating $ 127 of the Alaska Code, prohibitprohibition may issue “to the district courts ing the keeping of a disreputable house, when proceeding as courts of admiralty and and punishing the offense by a fine or immaritime jurisdiction,” but there is no simi. prisonment in the county jail. lar provision in respect of other courts.

As stated in the bill of exceptions, when And it has been repeatedly held, as to the the case was called the court announced circuit courts, that they have no power, un

“that the cause would be tried before a jury der $ 716, to issue writs of prohibition and composed of six jurors,” in accordance with

§ 171 of the Code for Alaska adopted by mandamus, except when necessary in the

Congress, wherein, among other things, it exercise of their existing jurisdiction. Bath

was provided as follows (31 Stat. at L. 358, County v. Amy, 13 Wall. 248, 20 L. ed. 541; chap. 786): “That hereafter in trials for M'Clung v. Silliman, 6 Wheat. 601, 5 L. ed. misdemeanors six persons shall constitute 341.

a legal jury.” To this announcement by the This is equally true of this court; that is court an exception was duly preserved. A to say, that in cases over which we possess jury of six persons was then impaneled, neither original nor appellate jurisdiction when the objection was renewed and a dewe cannot grant prohibition or mandamus mand made for a common-law jury, which or certiorari as ancillary thereto.

was refused, and an exception was again Rule discharged; petition denied.



To a verdict and judgment of conviction United States as an integral part thereof, this writ is prosecuted directly to this as we have said, was sustained upon the court, reliance for a reversal being had on reasoning expounded in the opinion of three, the violation of the Constitution alleged to if not of four, of the judges who concurred have resulted from the trial of the case by in the judgment in Downes v. Bidwell, that a jury of six persons, and upon other errors reasoning being in effect adopted in the of law which, it is asserted, the court com-Dorr Case as the basis of the ruling there mitted in the course of the trial.

made, the court saying (p. 143, 195 U. S., p. At the threshold of the case lies the con- 110, 24 Sup. Ct. Rep., 49 L. ed. 128): stitutional question whether Congress had "Until Congress shall see fit to incorpower to deprive one accused in Alaska of porate territory ceded by treaty into the a misdemeanor of trial by a common-law United States, we regard it as settled by jury; that is to say, whether the provision that decision [Downes v. Bidwell] that the of the act of Congress in question was re- territory is to be governed under the power pugnant to the 6th Amendment to the Con-existing in Congress to make laws for such stitution of the United States.

territories, and subject to such constituAt the bar the government did not deny tional restrictions upon the powers of that that offenses of the character of the one body as are applicable to the situation.” here prosecuted could only be tried by a com- And in view of the status of the Philipmon-law jury, if the 6th Amendment gov- pine Islands it was decided that the 6th erned. "The government, moreover, did not Amendment was not applicable to those dispute the obvious and fundamental truth islands, and therefore Congress, when it that the Constitution of the United States legislated concerning them, was not conis dominant where applicable. The validity trolled by the provisions of that amendof the provision in question is, therefore, ment. It would serve no useful purpose to sought to be sustained upon the proposition re-express the reasons supporting this conthat the 6th Amendment to the Constitution clusion, and we content ourselves with quotdid not apply to Congress in legislating for ing the summing up made by the court in Alaska. And this rests upon two conten- the opinion in the Dorr Case, as follows (p. tions, which we proceed separately to con- 149, 193 U. S., p. 813, 24 Sup. Ct. Rep., 49 sider.

L. ed. 128): 1st. Alaska was not incorporated into the “We conclude that the power to govern United States, and therefore the 6th Amend- territory, implied in the right to acquire ·ment did not control Congress in legislat- it, and given to Congress in the Constituing for Aluska.

tion in article 4, § 3, to whatever other If the premise, that is, the status of limitations it may be subject, the extent of

, Alaska, be conceded, the conclusion deduced which must be decided as questions arise, from it is established by the previous does not require that body to enact for rulings of this court. In Dorr v. United

In Dorr v. United ceded territory, not made a part of the States, 195 U. S. 138, 24 Sup. Ct. Rep. United States by congressional action, a

. 808, 49 L. ed. 128, the question was system of laws which shall include the right whether the 6th Amendment was control of trial by jury, and that the Constitution ling upon Congress in legislating for the does not, without legislation and of its own

, Philippine Islands. Applying the principles force, carry such right to territory so situated.” which caused a majority of the judges who We are brought, then, to determine concurred in Downes V. Bidwell, 182 U. whether Alaska has been incorporated into

, S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. the United States as a part thereof, or is 770, to think that the uniformity clause simply held, as the Philippine Islands are of the Constitution was inapplicable to held, under the sovereignty of the United Porto Rico, and following the ruling an- States as a possession or dependency. nounced in Hawaii v. Mankichi, 190 U. S. Concerning the test to be applied to deter197, 47 L. ed. 1016, 23 Sup. Ct. Rep. 787, mine whether in a particular case acquired


a it was decided that, whilst by the treaty territory has been incorporated into and with Spain the Philippine Islands had come forms a part of the United States, we do under the sovereignty of the United States not deem it necessary to review the general and were subject to its control as a de- subject, again contenting ourselves by quotpendency or possession, those islands had ing a brief passage from the opinion in not been incorporated into the United Dorr v. United States, summing up the reaStates as a part thereof, and therefore Con- sons which controlled in determining that gress, in legislating concerning them, was the Philippine Islands were not incorposubject only to the provisions of the Con-rated, viz. (p. 143, 195 U. S., p. 810, 24 Sup. stitution applicable to territory occupying Ct. Rep., 49 L. ed. 128): that relation. The power to acquire terri- "If the treaty-making power could intory without incorporating it into the corporate territory into the United States without congressional action, it is apparent to say that that treaty also contained prothat the treaty with Spain, ceding the Phil. visions for incorporation, and was acted ippines to the United States, carefully re- upon exactly in accord with the practical frained from so doing; for it is expressly construction applied in the case of the acprovided that (article 9) “the civil rights quisition from Mexico, as just stated.” and political status of the native inhab- Presumably it was also a consideration itants of the territories hereby ceded to the of the character of the rights conferred by United States shall be determined by the the treaty by which Alaska was acquired, Congress.' In this language it is clear that and the legislation of Congress concerning it was the intention of the framers of the that territory, to which we shall hereafter treaty to reserve to Congress, so far as it refer, which caused Mr. Justice Gray, in could be constitutionally done, a free hand his concurring opinion in Dounes v. Bidwell, in dealing with these newly acquired pos- to say (p. 345, L. ed. p. 1128, Sup. Ct. Rep. sessions.

p. 809): “The legislation upon the subject shows “The cases now before the court do not that not only has Congress hitherto re-touch the authority of the United States frained from incorporating the Philippines over the territories, in the strict and techinto the United States, but in the act of nical sense, being those which lie within 1902, providing for temporary civil govern- the United States, as bounded by the Atlanment (32 Stat. at L. 691, chap. 1369), there tic and Pacific Oceans, the Dominion of is express provision that § 1891 of the Re- Canada, and the Republic of Mexico, and vised Statutes of 1878 shall not apply to the territories of Alaska and Hawaii, but the Philippine Islands."

they relate to territory in the broader This brings us to consider the treaty by sense, acquired by the United States by war which Alaska was acquired, and the action with a foreign state.” of Congress concerning that acquisition, for That Congress, shortly following the the purpose of ascertaining whether, within adoption of the treaty with Russia, clearly the criteria referred to in Downes v. Bidwell contemplated the incorporation of Alaska and adopted and applied in Dorr v. United into the United States as a part thereof, we States, Alaska was incorporated into the think plainly results from the act of July United States.

20, 1868, concerning internal revenue taxaThe treaty concerning Alaska, instead of tion, chap. 186, § 107 (15 Stat, at L. 167, exhibiting, as did the treaty respecting the U. S. Comp. Stat. 1901, p. 2277), and the Philippine Islands, the determination to re- act of July 27, 1868, chap. 273, extending serve the question of the status of the ac- the laws of the United States relating to quired territory for ulterior action by Con- customs, commerce, and navigation over gress, manifested a contrary intention, since Alaska, and establishing a collection district it is therein expressly declared, in article therein. 15 Stat. at L. 240.

15 Stat. at L. 240. And this is 3, that:

fortified by subsequent action of Congress, “The inhabitants of the ceded territory which it is unnecessary to refer to.

shall be admitted to the enjoyment Indeed, both before and since the decision of all the rights, advantages, and immu- in Downes v. Biduell the status of Alaska nities of citizens of the United States; and as an incorporated territory was and has shall be maintained and protected in the been recognized by the action and decisions free enjoyment of their liberty, property of this court. By the 6th section of the and religion.” [15 Stat. at L. 542.] judiciary act of March 3, 1891 (26 Stat.

This declaration, although somewhat at L. 826, chap. 517, U. S. Comp. Stat. 1901, changed in phraseology, is the equivalent, as pp. 549, 550), it was made the duty of this pointed out in Downes v. Bidwell, of the court to assign the several territories of formula, employed from the beginning to the United States to particular circuits ; express the purpose to incorporate acquired and in execution of this law this court, by territory into the United States, especially an order promulgated May 11, 1891, asin the absence of other provisions showing signed the territory of Alaska to the ninth an intention to the contrary. And it was judicial circuit. The Coquitlam v. United doubtless this fact conjoined with the sub-States, 163 U. S. 346, 41 L. ed. 184, 16 Sup. sequent legislation of Congress which led Ct. Rep. 1117. That case was a suit in to the following statement concerning Alas- admiralty, brought by the United States in ka made in the opinion of three, if not the district court of Alaska for the forfour, of the judges who concurred in the feiture of the steamer Coquitlam, because judgment of affirmance in Downes v. Bid- of a violation of the revenue laws of the well (p. 335, L. ed. p. 1125, Sup. Ct. Rep. United States. From a decree rendered in p. 805):

favor of the United States an appeal was “Without referring in detail to the ac-i prosecuted to the circuit court of. appeals

1 quisition from Russia of Alaska, it suffices for the ninth circuit. The United States challenged the jurisdiction of the circuit | exerted its authority as a local legislature court of appeals upon the grounds: (1) for Alaska. That the district court of Alaska was not It follows, then, from the text of the a district court within the meaning of the treaty by which Alaska was acquired, from 6th section of the judiciary act of 1891, the action of Congress thereunder, and the and was not a district court belonging to reiterated decisions of this court, that the the ninth circuit; (2) that the district proposition that Alaska is not incorporated court of Alaska was not the supreme court into and a part of the United States is deof a territory within the meaning of the void of merit, and therefore the doctrine order of this court. The circuit court of settled as to unincorporated territory is appeals certified the question of jurisdic- inapposite and lends no support to the contion. After fully reviewing the legislation tention that Congress in legislating for of Congress relating to Alaska, and stating Alaska had authority to violate the express the general appellate power of the circuit commands of the 6th Amendment. courts of appeal over judgments and de- This brings us to the second proposition, crees of the district and circuit courts, it which is was decided

that under the authority 2d. That even if Alaska was incorporated granted to the circuit courts of appeal by into the United States, as it was not an orthe 15th section of the judiciary act of ganized territory, therefore the provisions March 3, 1891, to review judgments of the of the 6th Amendment were not controlling supreme court of any territory assigned to on Congress when legislating for Alaska. such circuit by this court, the circuit court We do not stop to demonstrate from origof appeals of the ninth circuit possessed inal considerations the unsoundness of this appellate jurisdiction over the cause. In contention and its irreconcilable conflict the course of the opinion it was declared with the essential principles upon which (p. 352, L. ed. p. 186, Sup. Ct. Rep. p. our constitutional system of government 1119):

rests. Nor do we think it is required to “Alaska is one of the territories of the point out the inconsistency which would United States. It was so designated in arise between various provisions of the Conthat order (referring to the order of this stitution if the proposition was admitted, court assigning to the ninth circuit], and or the extreme extension on the one hand, has always been so regarded. And the court and the undue limitation on the other, of established by the act of 1884 is the court the powers of Congress which would be ocof last resort within the limits of that casioned by conceding it. This is said, beterritory. It is, therefore, in every substan- cause, in our opinion, the unsoundness of tial sense, the supreme court of that terri- the proposition is conclusively established

by a long line of decisions. Webster v. Reid, In Binns v. United States, 194 U. S. 486, 11 How. 437, 13 L. ed. 761; Reynolds v. 48 L. ed. 1087, 24 Sup. Ct. Rep. 816, the United States, 98 U. S. 154, 25 L. ed. 246; question was this: The Penal Code for Callan v. Wilson, 127 U. S. 540, 3 L. ed. Alaska imposed certain license taxes. The 223, 8 Sup. Ct. Rep. 1301; American Pub. plaintiff in error was convicted for not pay- Co. v. Fisher, 166 U. S. 464, 41 L. ed. 1079, ing such a tax, and the case was brought to 17 Sup. Ct. Rep. 618; Springville v. Thomas, this court on the contention that the act 166 U. S. 707, 41 L. ed. 1172, 17 Sup. Ct. of Congress levying the tax was repugnant Rep. 717; Thompson v. Utah, 170 U. S. to the clause of the Constitution requiring 345, 42 L. ed. 1064, 18 Sup. Ct. Rep. 620; uniformity throughout the United States, Capital 'Traction Co. v. Hof, 174 U. S. 1, 43 as licenses of the character complained of L. ed. 873, 19 Sup. Ct. Rep. 580; Black v. were imposed only in Alaska. After re- Jackson, 177 U. S. 349, 44 L. ed. 801, 20 ferring to the statements concerning Alaska Sup. Ct. Rep. 648. contained in the concurring opinions in The argument by which the decisive force Downes v. Bidwell, the one written by Mr. of the cases just cited is sought to be esJustice Gray and the other by Mr. Justice caped is that, as when the cases were deWhite, and after approvingly citing the cided there was legislation of Congress expassage from the Coquitlam Case above re-tending the Constitution to the District of ferred to, the court declared it to be set-Columbia or to the particular territory to tled that Alaska had been undoubtedly in which a case may have related, therefore the corporated into the United States, and hence decisions must be taken to have proceeded conceded that the license complained of was alone upon the statutes, and not upon the invalid if levied by Congress under the gen- inherent application of the provisions of eral grant in the Constitution of the power the 5th, 6th, and 7th Amendments to the of taxation. The legislation in question District of Columbia or to an incorporated was, however, sustained on the exceptional territory. And, upon the assumption that ground that Congress had therein merely the cases are distinguishable from the pres


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