Petition — Speed v. Goodner ex rel. Hadley

October Term 1982

STATE OF WASHINGTON, ex rel.

SHANA MARIE GOODNER, a minor,

by her Guardian ad Litem,

REED HADLEY, and

DIANA LYNN GOODNER,

Respondents,

Ve

CHARLES WILLARD SPEED,

Petitioner.

On Certiorari from the Supreme Court

of the State of Washington

Barry J. Dahl

, MERTSCHING,

HUSEMOEN, DONALDSON & BARLOW

1000 Twelfth Avenue, Suite 2

P. O. Box 1549

Longview, WA 98632

Telephone: (206) 423-5220

Attorneys for Petitioner

QUESTION PRESENTED FOR REVIEW

Is an act of a territory reviewable

by the supreme court of the successor

state such that the state supreme court

may declare the territorial enactment

null and void and thus deny the right to

a trial by jury in a civil cause of

action?

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .

OPFICIAL OPINIONS ...+«-e«-e«-e-s

GROUNDS OF JURISDICTION ....

CONSTITUTIONAL PROVISIONS,

STATUTES, AND RULES INVOLVED .

STATEMENT OF THE CASE ...-s -

ARGUMENTS AND REASONS FOR

GRANTING THE WRIT . «2+ «+ «© @ «

A. Jurisdiction of State

Supreme Court ..-e«-ee-s

B. Supremacy and Territorial

Clauses of U.S.

Constitution . . «eee -s.

C. The Supreme Court has

Misconstrued its

Jurisdiction . . .« .«+«e-s.

l. Purpose Violated...

2. Enabling Act Rationale

Incorrect “eeeee

APPENDIX A . «+ ee ee © © © &

APPENDIX B . «eee eesese

APPENDIX C 2. + ee eee eee

APPENDIX D «2+ «© e e+e ee @ »

17

iii

Table of Cases

Bowles vy. Barde Stee] Co.,,

177 Or. 421, 164 P.2d 692, 162

A.L.R.

328 (1945) «ec ececveee

, 42 Pa.

Byers vy. Commonwealth

89, 94 (1862) > > + . i >. - > oe 7. -

Coupe, 37 Cal. 2d 283, 231

P.2d 832 (1951) «2-2 ee ee eee

, 85 U.S. 317, 21

Snow vy. U.S.

LeBG. 784 (1880) . «ee we we ee

, 16 Wash. 382,

Doherty

42 P. 958 (1897) | a ke a 11-12,

» 26 Wn. App.

State vy. Speed

648, 613 P.2d 1207 (1980) ....-.

State vy. Tieman

32 Wash. 294, 73 P. 375

(1903)

eoesvecce «6 Bee 14, 16, L136

Testa vy. Katt, 330 U.S.

386, 91 L.Ed. 967, 67 S.Ct.

810 (1947) -. & £60 oo ero @ Oe @

&Ind,., 52 Wash. 2d 33,

323 P.2d 241 (1958) . « «© «© © we @ «

, 435 U.S.

U.S. v. Wheeler

313, 55 L.Ed. 2d 303, 98

S.Ct.

1079 (1978) ~. 2. «ee eee

25

22

22

19

10

27

20

16

18

iv

Constitutional Provisions

Oo8. Comet. O@€0 IZ, Sl cee ec eee aa

U.S. Const. art. IlI, §1 .

U.S. Const. art IV, §3 ..

U.S. Const. art VI ..«-.

U.S. Const. art VI, §2 ..

Wn. St. Const. art l, §21 .

Wn. St. Const. art 4, §4 .

Wn. St. Const. art 2, §19 .

Statutes

RCW 2.04.010 . «. «+ » e© @ «

RCW 26.26.120(5) .. ++ «

RCW 26.26.150(2) .. +s

The Organic Act, Ch. 90, §6

10 Stat., 172 (1853) ...

The Enabling Act, Ch. 180,

§§4, 22, 23, 25 Stat., 676

(1889) . . . . oe . . 7 . .

26 Stat., Proclamations, p.

Nov. ll, 1889 . . « «© © « e

Washington Territorial Code

of 1881, ch. LXVI, §1078,

UZiG-l2ZZld ec cece eeee

- 4,

. . 3

- 4, 18

« 7, ll

- 8, 10

Other Authorities

16 Am. Jur. 24 Constitutional

Bae 876 (1979) «ee ec ec eeeee 2

20 Am. Jur. 2d Courts §91

(1965) . . . . . . . . . . ° . . . 15

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1982

STATE OF WASHINGTON, ex rel.

SHANA MARIE GOODNER, a minor,

by her Guardian ad Litem,

REED HADLEY, and

DIANA LYNN GOODNER,

Respondents,

Ve

CHARLES WILLARD SPEED,

Petitioner.

On Certiorari from the Supreme Court

of the State of Washington

OFFICIAL OPINIONS

The reported opinion in the instant

case by the Washington State Court of

Appeals, Division II, can be found at 26

Wash. App. 648, 613 P.2d 1207 (1980).

The reported opinion by the

Washington State Supreme Court in the

instant case can be found at 96 Wash. 2d

838, _..__ P.2d_.. (See Appendix A.)

GROUNDS OF JURISDICTION

The judgment which is sought te be

reviewed is that of the Washington State

Supreme Court which was filed on January

15, 1982. A timely Motion for Reconsid-

eration was filed and the Order Denying

the Motion for Reconsideration was dated

April 28, 1982. The jurisdiction of this

Court to review the decision of the

Washington State Supreme Court is

conferred by 28 U.S.C. §1257(3).

Because the constitutionality of the

Territorial Act of 1881, an act of

Congress, is drawn in question and 28

U.S.C. §2403(a) may be applicable, notice

should be served on:

Washington State statutes,

26 -26.120(5) ’

U.S.C.

The Solicitor General

Department of Justice

Washington, D.C. 20530

Because the constitutionality of

§2403(b) may be applicable, notice

should be served on:

Hon. Ken Eikenberry

Attorney General of the

State of Washington

Temple of Justice

Olympia, WA 98504

(206-284-5716)

l.

AED RULES INVOLVED

U. s. Const. art. III, §l:

$1. Judicial power; tenure of

office

Section 1. The judicial

Power of the United States, shall

be vested in one supreme Court,

and in such inferior Courts as

the Congress may from time to

time ordain and establish. The

Judges, both of the supreme and

inferior courts, shall hold their

Offices during good Behaviour,

and shall, at stated Times,

receive for their Services, a

Compensation, which shall not be

diminished during their

Continuance in Office.

RCW

is in question and 28

2. U. s. Const. art IV, §3:

$3. Admission of new states;

power over territory and other

property

Section 3. New States may

be admitted by the Congress into

this Union; but no new State

shall be formed or erected within

the Jurisdiction of any other

State; nor any State be formed by

the Junction of two or more

States, or Parts of States,

without the Consent of the

Legislature of the States

concerned as well as of the

Congress.

The Congress shall have

Power to dispose of and make all

needful Rules and Regulations

respecting the Territory or other

Property belonging to the United

States; and nothing in this

Constitution shall be so

construed as to Prejudice any

Claims of the United States, or

of any particular State,

3. U. S. Const. art. VI, §2:

This Constitution, and the

Laws of the United States which

shall be made in Pursuance

thereof; and all Treaties made,

or which shall be made, under the

Authority of the United States,

shall be the supreme Law of the

Land; and the Judges in every

State shall be bound thereby, any

Thing in the Constitution or Laws

of any State to the Contrary

notwithstanding.

4. Wn. St. Const. art. 1, §21:

$21. Trial by Jury. The right

of trial by jury shall remain

inviolate, but the legislature

may provide for a jury of any

number less than twelve in courts

not of record, and for a verdict

by nine or more jurors in civil

cases in any court of record, and

for waiving of the jury in civil

cases where the consent of the

parties interested is given

thereto.

5. Wn. St. Const. art. 4, §4:

$4. Jurisdiction. The supreme

court shall have original

jurisdiction in habeas corpus and

quo warranto and mandamus as to

all state officers, and appellate

jurisdiction in all actions and

proceedings, excepting that its

appellate jurisdiction shall not

extend to civil actions at law

for the recovery of money or

personal property when the

original amount in controversy,

or the value of the property does

not exceed the sum of two hundred

dollars, unless the action

involves the legality of a tax,

impost, assessment, tool,

municipal fine, or the

of a statute. The supreme court

shall also have power to issue

writs of mandamus, review,

prohibition, habeas corpus,

certiorari and other writs

necessary and proper to the

complete exercise of its

appellate and revisory

jurisdiction. Each of the judges

shall have power to issue writs

of habeas corpus to any part of

the state upon petition by or on

behalf of any person held in

actual custody, and may make such

writs returnable before himself,

or before the supreme court, or

before any superior court of the

state or any judge thereof.

(Emphasis added.)

6. Revised Code of Washington

26 .26.1°0(5):

The trial shall be by the

court without a jury. [Added by

Laws 2nd Ex Sess 1975-76 ch 42

$13.)

7. Revised Code of Washington

2.04.010:

2.04.010 Jurisdiction. The

supreme court shall have original

jurisdiction in habeas corpus and

quo warranto and mandamus as to

all state officers, and appellate

jurisdiction in all actions and

proceedings excepting that its

appellate jurisdiction shall not

extend to civil actions at law

for the recovery of money or

personal property when the

Original amount in mean | or

the value of the property does

not exceed the sum of two hundred

dollars, unless the action

involves the legality of a tax,

impost, assessment, toll,

municipal fine, or the validity

of a statute. The supreme court

shall also have power to issue

writs of mandamus, review,

prohibition, habeas corpus,

certiorari, and all other writs

necessary and proper to the

complete exercise of its

appellate and revisory

jurisdiction. Each of the judges

shall have power to issue writs

of habeas corpus to any part of

the state, upon petition by or on

behalf of any person held in

actual custody, and may make such

writs returnable before himself

or before the supreme court, or

before any superior court of the

state, or any judge thereof.

8. An Act to Establish the

Territorial Government of Washington (The

Organic Act, Ch. 90, §6, 10 Stat., 172

(1853): (See Appendix B).

9. An Act to . « « enable the

people of . . .Washington to form

constitutions and state governments and

to be admitted into the Union on an equal

footing with the original states ....

(The Enabling Act, Ch. 180, §§4, 22, 23,

25 Stat., 676 (1889): (See Appendix C).

10. Washington Territorial Code of

1881, ch. LXVI, §1078, 1214-1221: (See

Appendix D).

ll. Wn. St. Const. art. 2, §19:

$19. Bill to Contain One

Subject. No bill shall embrace

more than one subject, and that

shall be expressed in the title.

STATEMENT OF THE CASE

The Petitioner, Charles Willard

Speed, was accused by a Complaint in 1978

of being the father of Shana Marie

Goodner. The Petitioner requested a jury

trial, which request was denied on the

basis that the Uniform Parentage Act

passed by the Washington Legislature

prohibits trial by jury [See RCW

26.26.120(5)]. The Petitioner alleged

that he had a constitutionally protected

right to a trial by jury because citizens

of the Territory of Washington had been

guaranteed that right at the time of the

adoption of the Washington State

Constitution, The Supreme Court of the

State of Washington held to the opposite.

Thus, the instant question.

The question of whether or not the

Washington State Supreme Court could hold

a territorial act to be null and void was

raised in the Washington State Court of

Appeals, which passed on the issue as

follows:

As interpreted in State ex rel.

Mullen vy. Doherty, 16 Wash. 382,

384, 47 P. 958 (1897), the

state's constitution protects the

right of trial by jury as it

existed in the territory at the

time the constitution was

adopted. Defendant urges that,

in light of the right to jury

trial provided in bastardy

proceedings under the Territorial

Code of 1881, ch. LXVI, § 1919,

he should be provided a similar

right despite RCW 26.26.120(5).

That portion of the Territorial

Code relating to illegitimate

children, however, was held to

have been improperly enacted in

State v. Tieman, 32 Wash. 924, 73

P. 375 (1903). The effect of

that determination was to revive

10

the law as it stood prior to the

enactment of the Territorial

Code. Boeing Co. vy. State, 74

Wn.2d 82, 442 P.2d 970 (1968).

Accordingly, because no right to

jury trial in filiation

proceedings existed at the time

the state constitution was

enacted, defendant does not now

have a meritorious constitutional

challenge to RCW 26.26.120(5).

State vy. Speed, 26 Wn. App. 648, 649, 613

P.2d 1207 (1980).

The Supreme Court of the State of

Washington dealt extensively with the

issue (see Appendix A) of the grant of

authority to state supreme courts by

Congress. (96 Wash. 2d 838, 844-846.)

The specific questions presented

herein can be viewed from the following

facts:

1. The Organic Act, which created

the Washington Territory, was passed by

Congress in 1853. (See Appendix B.)

2. The Washington Territorial Code

of 1881, which was passed by the

territorial legislature, enacted the

1l

Bastardy Act and gave a right of trial by

jury to an accused father. (See Appendix

D.)

3. The énabling Act, approved

February 22, 1889, enabled the people of

the Territory of Washington to form a

constitution, to be admitted as a state,

and provided in Sec. 24 that "[A]11l laws

in force made by said Territories, at the

time of their admission into the Union,

shall be in force...." (See Appendix

Cc.)

4. The Washington State

Constitution was adopted in October,

1889, and provided that the right to a

trial by jury shall remain inviolate.

(See Wn, St. Const. art. 1, §21.)

5. The Washington State

Constitution protects a right to trial by

jury as it existed in the territory at

the time of the adoption of the state

constitution. State, ex rel. Mullen vy.

12

Doherty, 16 Wash. 382, 384, 42 P. 958

(1897).

6. Washington became a state by

presidential proclamation on November ll,

1889. (26 Stat., Proclamations, p. 10,

Nov. 11, 1889.)

7. In 1903 the Washington State

Supreme Court declared the Bastardy Act

to be invalid. (State vy. Tieman, 32

Wash. 294, 73 P. 375 (1903).)

8. In 1976 the Washington State

Legislature enacted the Uniform Parentage

Act which denied the right to a jury

trial to accused fathers. (RCW

26 .26.150(2) .)

9. The Washington State Supreme

Court, in deciding the constitutionality

of the Uniform Parentage Act, held that

since Section 22 of the 1889 Enabling Act

made the Washington State Supreme Court

the successor of the supreme court of the

territory, the Washington State Supreme

13

Court had the jurisdiction to declare

territorial acts invalid. The supreme

court reasoned that the nullity went to

the incipience of the territorial act;

and, thus, there was in fact no protected

right to a jury trial in the territory at

the time of the adoption of the

Washington State Constitution. (See

Appendix A.)

Thus, if the Supreme Court of the

State of Washington did not receive the

authority to declare a territorial act a

nullity, the right to a jury trial in

Bastardy or Uniform Parentage Act cases

exists as a protected right to the

citizens of the State of Washington and

the legislative enactment denying that

right is unconstitutional.

ARGUMENT AND REASONS FOR

GRANTING THE WRIT

This case presents important

questions of federal law which have not

14

been, but should be, decided concerning

the jurisdiction of successor state

courts and their authority to declare

acts of Congress void,

It is asserted in this petition that

the Washington State Supreme Court in

Tieman, supra, did not have the

"jurisdiction" to invalidate an act of

the federal government; i.e., the

Territory of Washington. Further, it is

urged that the Washington State Supreme

Court has misconstrued the grant of

Congress in the Enabling Act wherein it

named “successor courts." This argument

will proceed on three bases:

l. The grant of jurisdiction to

the Supreme Court of Washington only

permits review of the invalidity of

Washington State statutes,

2. By federal law under the

Supremacy Clause of the United States

Constitution, Article VI, the state

15

Supreme court is plainly without

jurisdiction to invalidate a federal act,

3. The Washington State Supreme

Court was not granted the authority to

invalidate territorial acts by being

named as the successor to the Washington

Territorial Supreme Court.

A. Jurisdiction of State Supreme

Court.

A court possesses only such

jurisdictional powers as are conferred by

the constitution or legislation of the

sovereign under which it functions and

Congress cannot vest the judicial power

of the United States in state courts (20

Am. Jur. 24 Courts §91 (1965)). In

Washington, the grant of jurisdiction to

the supreme court is found in Article 4,

Section 4, of the Washington State

Constitution and in RCW 2.04.010.

16

Pursuant to both of those grants,

the supreme court has jurisdiction over

the validity of "statutes." Further, it

is plainly the duty of the court to

invalidate “statutes” if they contravene

the state constitution (Windust vy. Dept.

of Labor & Ind.,- 52 Wash. 2d 33, 37, 323

P.2d 241 (1958).

There plainly is no grant of

jurisdiction to render federal laws

invalid. Thus, simply from this brief

analysis, it can be seen that an attempt

to invalidate an act which was not one of

the sovereign, the state of Washington,

is not within the jurisdiction of the

state supreme court.

The authority and jurisdiction of

the state supreme court could not

antedate November, 1889, the date of

statehood. It is not argued that the

court in Ziemann, supra, could not rule on

"statutes" after that date, but it is

17

illegical to presume that the Washington

State Supreme Court would have

jurisdiction over acts which predated the

existence of its own sovereign--the

state. Thus, under the rationale of

State ex rel. Mullen vy. Doherty, 16 Wash.

382, 384, 47 P. 958 (1897), the right to

a trial by jury existed in the territory

at the time of the adoption of the

constitution (October, 1889) and should

still exist under the Uniform Parentage

Act, RCW 26.

B. Supremacy and Territorial

Clauses of U.S. Constitution.

In order to examine whether or not

there was jurisdiction for the state

supreme court to invalidate a territorial

act, the U.S. Constitution should be

examined. Two articles are important for

this examination; i.e., Article VI,

Clause 2~-the Supremacy Clause, and

18

Article IV, Section 3, Clause 2--the

Territorial Relations.

1. U. &S Constitution, Article IV,

Section 3, Clause 2, states as follows:

[2] The Congress shall have

Power to dispose of and make all

needful Rules and Regulations

respecting the Territory or other

Property belonging to the United

States; and nothing in this

Constitution shall be s0

construed as to Prejudice any

Claims of the United States, or

of any particular State,

The court's attention is invited to

U.S. vy. Wheeler, 435 U.S. 313, 55 L.Ed.

2d 303, 98 S.Ct. 1079 (1978), wherein the

supreme court briefly explained the

identifying features of a “territory” and

indicated that it is an agency of the

federal government:

Similarily, a territorial

government is entirely the

creation of Congress, “and its

judicial tribunals exert all

their powers by authority of the

United States."

Grafton yv.

United Atabes, supra, 206 U.S.,

at , 27 &.Ct., at 7557 see

Cincinnati Soap Co. v. United

19

States, 301 U.S. 308, 317, 57

S.Ct. 764, 768, 81 L.Ed. 1122;

United States v. Kagama, 118 U.S,

375, 380 6 S.Ct. 1109, ill, 30

L.Ed. 228; American Ins. Co. vy.

Canter, 1. Pet. 511, 542, 7 L.Ed.

242. When a territorial

government enacts and enforces

criminal laws to govern its

inhabitants, it is not acting as

an independent political

community like a State, but as

"an agency of the federal

government.” Domenech _v.

National City Bank, 294 U.S. 199,

204-205, 55 S.Ct. 366, 369, 79

L.Ed, 857. (at page 1085.)

In early cases, the U. S. Supreme

Court dealt with the entity of a

territory and set forth the law

concerning them:

The government of the

Territories of the United States

belongs, primarily, to Congress;

and, secondarily, to such

agencies as Congress may

establish for that purpose.

During the term of their pupilage

as Territories, they are mere

dependencies of the United

States. Their people do not

constitute a sovereign power.

All political authority exercised

therein is derived from the

General Government.

85 U.S. 317, 21 L.Ed. 784,

785 (1880).

20

2. U. S. Constitution, Article VI,

Section 2, states as follows:

{2]) This Constitution and

the Laws of the United States

which shall be made in Pursuance

thereof; and all Treaties made,

or which shall be made, and under

the Authority of the United

States, shall be the supreme Law

of the Land; and the Judges in

every State shall be bound

thereby, any Thing in the

Constitution or Laws of any State

to the contrary notwithstanding.

It is plain that al] laws of the

United States shall be the supreme law of

the land. 16 Am. Jur. 24 Constitutional

Law $74 (1979). To see how these

doctrines interplay, one need look no

further than Testa vy. Katt, 330 U.S. 386,

91 L.Ed. 967, 67 S.Ct. 810 (1947),

wherein a federal act had provided for

penalty of treble damages; a state court

held that a federal penal statute could

not be maintained in state court. The

supreme court made short shrift of that

position, stating as follows:

21

The suggestion that the act

of Congress is not in harmony

with the policy of the State, and

therefore that the courts of the

State are free to decline

jurisdiction, is quite

inadmissible, because it

presupposes what in legal

contemplation does not exist.

When Congress, in the exertion of

the power confided to it by the

Constitution, adopted that act,

it spoke for all the people and

all the states, and thereby

established a policy for all.

That policy is as much the policy

of Connecticut as if the act had

emanated from its own

legislature, and should be

respected accordingly in the

courts of the state. Mondou vy.

New York, NH. & HR. CO., SUDIa,

223 U.S. at page 57, 32 S.Ct. at

page 178, 56 L.Ed. 327, 38

L.R.A., N.S. 44.

(at p. 814).

Thus, the sovereign for the

Territory of Washington was the Congress

of the United States, and only Congress,

its legislative courts, or the United

States Supreme Court under Article II,

Section 1, Clause 1, could invalidate the

act of the territory. The Supreme Court

22

of the State of Washington could not and

cannot invalidate any act of Congress!

Cc. The Supreme Court has

Misconstrued its Jurisdiction.

l. Purpose Violated,

The Washington State Supreme

Court cited two cases--Byers vy.

Commonwealth, 42 Pa. 89, 94 (1862), and

People vy. One 194] Chevrolet Coup, 37

Cal. 2d 283, 287, 231 P.2d 832 (1951)--

for the proposition that in looking for

the gight (to see what is preserved for

jury trials) we are to examine the issue

historically. Historically, socially,

factually, and legally in the territory,

at the time of the adoption of the

constitution--there was the right to a

jury trial in bastardy proceedings. The

Washington State Supreme Court was not

asked to enlarge the right, merely

preserve it. It destroyed the right by

use of a legal fiction,

23

2. Enabling Act Rationale

Incorrect,

a. The Washington State

Supreme Court in Tieman, Supra, did not

have to delve back to the Organic Act and

rely on the Enabling Act for its

authority. The court in Tieman, supra,

referred to a similar provision in the

Washington State Constitution (p. 296).

In fact, that provision is Article 2,

Section 19:

§19. Bill to Contain One

Subject. No bill shall embrace

more than one subject, and that

shall be expressed in the title,

This was adopted in 1889 in the

Washington State Constitution. Thus, a

correct analysis would have been:

1) The Bastardy Statute was a

State statute by virtue of Sec. 24 of the

Enabling Act;

2) But it was unconstitutional by

24

virtue of Art. 2, Section 19 of the

Washington State Constitution;

3) Thus, it was null and void as

of the date of either adoption of the

constitution or the date of statehood,

b. The grant of Congress

through the Enabling Act was to give the

territory a chance to form a state by

adopting a constitution, which if it met

certain guidelines, would be granted

statehood. Note the guidelines in

Section 4 (e.9g., a republican form of

government, no distinction in civil

rights based on race or color, etc.).

The Washington State Supreme Court

in the instant case held that by naming

the state courts as successors, it

granted the right to construe territorial

acts--even to declaring them null and

void. That rationale fails on

examination:

1) Section 22 clearly

25

indicates that as to cases arising prior

to admission:

{T]he parties to such judgment

shall have the right to prosecute

appeals and writs of error to the

Supreme Court of the United

States as they shall have had by

law prior to the admission of

said State into the union,

2) Section 23 reserved the

right to pending civil cases to request

that litigants could choose their

forums--either U.S. district courts 9,

state courts,

Thus, Congress can confer concurrent

jurisdiction on state courts for

enforcement of penalties, but those

courts have only such powers as Congress

expressly grants. Bowles vy. Barde Steel

CQos., 177 Or. 421, 164 P.2d 692, 162

A.L.R. 328 (1945). Here, Congress did

not grant the right to declare yoid its

own act. The grant of jurisdiction was

limited, and presumed statehood, and

presumed that all laws would be in effect

26

in the states as had been in effect in

the territory, “except as modified or

changed by this act or by the

Constutitions of the States,

respectively." (Sec. 24, Enabling Act.)

Nothing granted the authority to declare

territorial acts void,

Cc. The constitution of the

State of Washington defined the limit of

the judicial power of the supreme court,

as set forth above, to decide the

validity of gtatutes (not territorial

acts); so, the constitution was self-

limiting and the authority of the Supreme

Court of Washington, which only came to

being on November 1l, 1889, could not

antedate the inception of the state

itself.

Thus, three premises are obvious:

l. The Supreme Court of the State

of Washington, by constitutional grant

and by statute, can only decide the

27

validity of state statutes. In this

context, Tieman, supra, could have only

declared null and void the Washington

State statute relating to bastardy

proceedings in effect after November li,

1889.

2. Congress, who was the sovereign

of the Territory of Washington, only set

forth the diagram for the state and did

not grant jurisdiction to declare its own

acts void,

3. Historically, the right to a

jury trial in bastardy proceedings was a

fact: socially, it was a determination by

the territorial legislature--an arm of

Congress; and legally, it existed and

could not be overturned by a state

supreme court.

The usurpati_a of the authority by

the Washington Supreme Court has lead to

an enlargement of its authority; and it

has denied the right to a jury trial to

28

its citizens when Congress had first

guaranteed that right.

Therefore, Petitioner respectfully

requests that this Court review the

decision of the Washington State Supreme

Court and decide the question presented

by this case.

Respectfully submitted,

Of Attorneys for Petitioner